HEERA TRADERS versus KAMLA JAIN on 22 February 2022

[2022] 10 S.C.R. 291

HEERA TRADERS

v.

KAMLA JAIN

(Civil Appeal Nos. 5996-5997 of 2021)

FEBRUARY 22, 2022

[K. M JOSEPH AND

PAMIDIGHANTAM SRI NARASIMHA, JJ. ]

Madhya Pradesh Accommodation Control Act, 1961 – s.13 ––When tenant can get benefit of protection against evictionInterpretation of – Held: Even though s.13 does refer to the erstwhiletenant as a tenant and it obliges him to deposit throughout theproceedings, the amounts, which can be treated as the rent beingpaid, which would be contractual rent or even the rent fixed as thestandard rent, this does not, by itself, alter the effect of the Decree/Order of eviction passed by the Court, by which, he stood deprivedof the status of a tenant – Filing of an appeal or other proceedingby the tenant, does not make the decree inexecutable – Payment ofthe amounts u/s.13(1) or s.13(2), does not, by itself, bring aboutthe stay of the decree or order of eviction – By making the payments,contemplated in s.13(1) or s.13(2), the erstwhile tenant, who stooddeprived of the status of a tenant, does not regain the said status bymere reason of the fact that in s.13, he is referred to as the tenant –The position of the erstwhile tenant under the Act, going by thedefinition in s.2(i) of the Act, will continue to hold the field, evenafter an appeal or other proceeding is maintained by him – Therefore,s.13 despite the unique provision contained therein, does not affectthe position at law, which stands declared in Atma Ram case –Withthe Decree of Eviction being passed, the erstwhile statutory tenantbecomes an unauthorised occupant – The fact that the law permitsthe defendant to file an appeal or to take other proceedings, willnot clothe him with rights as a tenant – The fact that the finality ofthe Decree of Eviction is attained at a later stage, will not besufficient to extricate him from his position as an unauthorisedoccupant in the interregnum –During such interregnum, the erstwhiletenant, being in the position of an unauthorised occupant, becomesliable to pay mesne profits – Even after the substitution of s.13, it

291

A

B

CDEF

G

H

Awould be open to the Appellate Court to impose the condition thatappellant seeking to contest the Decree of Eviction, shall deposit areasonable sum, which is not to be limited to the agreed rent– Codeof Civil Procedure, 1908 – Or.XLI, r.5.

Madhya Pradesh Accommodation Control Act, 1961 – s.13B(prior to its substitution in the year 1983) – Impact of – Discussed.

Madhya Pradesh Accommodation Control Act, 1961 – s.13 –Code of Civil Procedure, 1908 – Or.XLI, r.5 – Plea of the appellants-tenants that s.13 of the Act, being a special law, the power underOr. XLI r.5, cannot be exercised to direct deposit or payment ofCmesne profits – Held: Not acceptable – Compliance with s.13 by theappellants, does no amount to a stay of the Decree for Eviction –The power of the Appellate Court to impose conditions for stayingthe Decree, cannot be confined by the dictate in s.13 of the Act, tothe appellants/tenants, to deposit the agreed rent, particularly, havingregard to the time consumed in litigation and, more importantly, theDimpact of the Decree of Eviction, depriving the appellant of hisstatus as a tenant.

Interpretation of Statutes – Heading of a section – Held: Theheading of a section cannot control the construction of the provisionitself – The provision, as it unfolds under the heading, must be givenEthe full meaning according to the principles of interpretation, whichthe court is persuaded to apply – The only area where the headingmay be useful is when the provision is shrouded in ambiguity – Theheading may shed some light, however, faint it may be.

Partly allowing the appeals, the CourtF

Conclusion

HELD: 1.1 Let us first analyse the impact of Section 13, asit stood prior to its substitution in the year 1983. Section 12(1)(a)confers a right upon the landlord to seek eviction on the groundof the tenant falling into arrears of rent and remaining in arrearseven after service of a notice of a demand. The default shouldGpersist for two months from the service of demand. The demandmust relate to arrears of rent not barred by time. This is a groundavailable under Section 12(1)(a). It constitutes a cause of actionfor seeking eviction. However, Section 12(3) provided andcontinues to provide that no Order for the Eviction of a tenantshall be made on the ground under Section 12(1)(a), if the tenantH

makes payment or deposit, as contemplated in Section 13. Theproviso to Section 13, however, tabooed and continues to prohibitthe invocation of the protection under Section 12(3) read withSection 13, more than once, in respect of any accommodation.The tenant, in other words, stands shielded from eviction despitethe availability of the ground under Section 12(1)(a), leading toan Eviction proceeding being filed. But, in respect of the sameaccommodation, in respect of which, the default took place, thetenant does not get insulated from eviction, if he defaults inpayment of rent for the same accommodation for threeconsecutive months. This was the protection, which was actuallycontemplated under Section 13, prior to Section 13 beingsubstituted in the year 1983. Till 1983, thus, the protection couldnot be availed by any tenant on the ground of payment of rent byhim during the proceeding for eviction or Appeal. After Section13 was substituted in 1983, the legislative intent marks a shift.The tenant is obliged not only when a Suit or other proceeding isfiled by the landlord to deposit the amount in terms of Section13, but he is compelled by law, even after an Order of Evictionhas been passed against him and when he challenges the Decreeor Order for Eviction by way of an Appeal or other proceeding, todeposit within one month of the institution of the Appeal or otherproceeding the amount equal to the rent. He may also, on anapplication made to the court, deposit the amount or pay withinsuch further time, as the court may allow. The amount, to be paidby the tenant, is to be calculated at the rate of the rent at which itwas paid. So far, there is no controversy. The conundrum isintroduced by the following words in Section 13 “for the periodfor which the tenant may have made default”. It is here that thedebate sharpens. [Paras 19-21][326-D-H; 327-A-C]

1.2 One of the salient features of the Act. Section 11Aprovides that Chapter III, in which Sections 12 and 13 appear,shall not apply to matters provided, especially in Chapter IIIA toa 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, interalia. The proceeding is instituted under Chapter IIIA before theRent Controlling Authority (hereinafter referred to as, ‘the AB

C

D

EF

G

H

AB

C

D

EF

G

H

AAuthority’). The grounds for eviction under Chapter IIIA arebonafide need for the residential and non-residential purposes.The ground of arrears of rent is conspicuous, it must be noticedby its absence in the proceeding under Chapter IIIA. The rightof the tenant is constrained by restrictions, as provided in Section23C. He must obtain leave to contest. Section 23D provides forBthe procedure to be followed by the Authority to grant leave.Section 23E declares that no Appeal shall lie from any Orderpassed by the Authority. However, Section 23E(2) clothes theHigh Court with revisional jurisdiction both suo motu or anapplication by an aggrieved person. Section 23F provides thatCthe stay of operation of the Order of Eviction by the Authority orthe High Court, shall not enure for a total period of more than sixmonths. As far as the proceedings, covered by the landlord, notfalling in Section 23J, but falling under Section 2(b), which definesthe word “landlord” is concerned, the Act contemplates theAuthority being endowed with certain powers of a Civil CourtDunder Section 29. An Appeal is provided to the District Judge orthe Additional District Judge from every Order of the Authority.Another feature of the Act is that a Second Appeal lies underSection 32, on grounds, which may be described asbeingparimateria with Section 100 of the Code of Civil Procedure,E1908 (hereinafter referred to as, ‘the CPC’, for short), as it stoodprior to the amendment in the year 1977. [Paras 22, 23][327-G-H; 328-A-C-F-G]

1.3 However, it is apposite to notice that the Act wasenacted in the year 1961. Section 12(1), which provides forFgrounds of eviction of tenants, provides that no Suit shall be filedin any Civil Court against the tenant for his eviction except onany of the grounds mentioned thereafter. Thus, it is not, as if, aSuit 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 appointGan Officer not below the rank of Deputy Collector, to be the RentControlling Authority for the area in his jurisdiction. As alreadynoticed, the said Authority was to have the same powers, as vestedin a Civil Court, in regard to certain matters. Therefore, in anarea, where there is no such Authority notified under Section 28,Hthe Law- Giver contemplated a Suit before the Civil Court. It is

in this context, apparently, that the law provided that Section 13contemplates Decree being passed for eviction and protectionunder Section 13 being extended in an Appeal from such Decree.In fact, in the cases before us, the proceedings are suits, appealsunder Section 96 of the CPC and second appeals under Section100. What is, however, relevant from a reference to Chapter IIIA,which provides for eviction on the grounds of bonafiderequirement, is that, vide Section 23H, Section 13 has been madeapplicable ‘mutatis mutandis’. Section 23H makes Section 13applicable, not only in an application for recovery of possessionunder Section 23A, but it also is made applicable in respect of aproceeding for Revision under Section 23E against a Final Orderby the Authority under Section 23C and Section 23D, as theyapply to a proceeding instituted under Section 12. It must benoticed that Chapter IIIA was inserted vide the very sameamendment (Act 27 of 1983), which also resulted in Section 13being substituted. In other words, Section 13, as substituted, wasintended to apply mutatis mutandis, undoubtedly, to a Revisionmaintained against a Final Order under Section 23C or Section23D. Section 23C contemplates an Order of Eviction, beingpassed against the tenant, if the conditions in the said provisionare satisfied. Section 23F also contemplates a stay being grantedby the High Court in a Revision under Section 23E of the Orderof Eviction. Therefore, when Section is made applicable to aRevision filed against an Order of Eviction under Section 23C,the Revision would be a Revision filed by the tenant, who hassuffered an Order of Eviction under Section 23C. What is,however,more important is that, under the scheme of ChapterIIIA, that is the fast-track procedure, as it were, contemplatedfor the special categories of landlords falling under Section 23J,it provides only for bonafide requirement as the ground forseeking eviction. If eviction is sought, in other words, on theground of arrears of rent, it may be open to the landlord to invokethe provisions of Section 12. The special right, however, to invokethe shorter and faster route to obtain an Order of Eviction, isavailable to the landlord, falling under Section 23J, only in respectof grounds of bonafide requirement. The relevance of this lies inconcluding that, by the insertion of Chapter IIIA along with thesubstitution of Section 13, and by virtue of Section 23H, making AB

C

D

EF

GH

ASection 13 applicable even to the proceeding under Chapter IIIA,when an Order for Eviction is passed under Section 23C and thetenant challenges such an Order of Eviction by a Revision, he isexpected to pay the amount, as provided in Section 13(1), duringthe pendency of the Revision. No doubt, in a proceeding underChapter IIIA, the Law-Giver has limited the operation of a StayBOrder of Eviction to the total period of six months.As alreadynoticed, as far as a proceeding contemplated under Chapter IIIby the ordinary landlord is concerned, if we may use thatexpression, falling under Section 2(b), Section 13, as such, applies.We have only attempted to divine the impact of Section 23H, toCfind that, even in a proceeding by the special category of landlords,falling under Section 23J, and what is more, where eviction cannotbe 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 toreveal the mind of the Legislature, and the ambiguity shroudingDits real intention, is to some extent, effaced. [Paras 24-27][329-B-H; 330-A-G]

1.4 Section 12(3) continues to grace the Statute Book. Thus,in a proceeding under Section 12(1)(a), viz., a petition seekingeviction on the ground of arears of rent, the Act protects theEtenant by permitting him to deposit the amount in arrears, whichconstitutes a ground for seeking eviction, in the first place, inthe manner provided in Section 13. As explained by this Court inSobhagyamal (supra), the tenant, in default of payment of rent,gets a new lease of life, despite the default being the ground for Feviction, to ward off the passing of an Order of Eviction by virtueof Section 12(3). Undoubtedly, in order that Section 12(3) apply,not only must the tenant pay the amount in arears, which is thebasis for the application under Section 12(1)(a), but he mustcontinue to pay the amounts, which are further mentioned in Section 13. Section 13(5), no doubt, again must be read alongGwith Section 12(3). Section 13(5) interdicts the passing of theDecree or Order by the Court for recovery on the ground ofdefault of payment of rent if compliance was made by the tenantof the requirement under Section 13(1) or Section 13(2). TheCourt is, however, authorised to allow costs. It is clear that SectionH13(5) is totally inapplicable in the case where the ground of eviction is a ground other than under the one in Section 12(1)(a).In other words, Section 13(5) applies only in a case, where thelandlord invokes default in payment of rent, as a ground foreviction. The argument of the respondent- landlord, therefore,is that this circumstance, along with the use of the words, “forthe period for which the tenant may have made default”, in Section13, would indicate that the protection from eviction, is not availableunless the suit is made under Section 12(1)(a). To make it furtherclear, the argument is that the Legislature has articulated theintention to protect the tenant upon his paying the amount underSection 13 only qua the tenant sued for eviction on the ground ofarears of rent. The landlord further argues that Section 13(6)indicates that, if there is failure on the part of the tenant to pay ordeposit the amount under Section 13, the Court is free to strikeoff the defence and proceed with the hearing of the matter. Section13(6) has been interpreted by this Court, as noted by us earlierin Shyamcharan Sharma (supra). As held by this court, the Courthas a discretion to condone the default in payment of rent andextend the time of payment of rent. Section 13(6) does not compelthe Court to order eviction of a tenant, found in violation of Section13. This view has also been followed in Ram Murti, as well. [Para28][330-G-H; 331-A-G]

Sobhagyamal and another v. Gopal Das Nikhra (2008)3 SCC 788 : [2008] 3 SCR 243; Ram Murti vs. BholaNath and another (1984) 3 SCC 111 –referred to.

1.5 The opening words of Section 13 provide that, on a Suitor any other proceeding, being instituted by a landlord on any ofthe grounds referred to in Section 12, the tenant is to deposit inCourt 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 Suitor any other proceeding is instituted by the landlord? Toexpatiate, after the above opening words in Section 13, by virtueof the substitution effected by Act 27 of 1983, can it mean thatthe words “or in an Appeal or in any other proceeding by a tenantagainst any Decree or Order for his eviction”, is not to be readalong with “on of the grounds referred to in Section 12”? To put ABC

D

E

F

G

H

ABC

D

E

F

G

H

Ait in a different manner, can it be said that the substitutedprovisions of Section 13 contemplated that the Appeal or anyother proceeding by the tenant, must be in a proceeding institutedonly under Section 12(1)(a), i.e., on the ground of arrears of rent,for the reason that the construction of the provision, which consistsof an elongated sentence to which meaning cannot be attached,Bexcept by bearing in mind the statutory duty of the tenant todeposit the amount for the period for which the tenant may havemade default. In other words, if the words “for the period forwhich the tenant may have made default” is an indispensablerequirement to apply Section 13, then the substituted provisions,Cextending the protection in an Appeal or other proceeding by atenant, would be confined to a proceeding under Section 12(1)(a).In this regard, we may also look for any inkling available in Section13 for the proposition that Section 13 is attracted in an Appeal orother proceeding by the tenant, on any of the grounds underSection 12. This would mean that Section 13 would apply even ifDthe ground of eviction is not one under Section 12(1)(a). Thewords “Appeal or proceeding, as the case may be”, were insertedin sub-Section (6) of Section 13 by Act 27 of 1983. This was inkeeping with the substitution effected in Section 13(1), wherebythe words “or in any Appeal or any other proceeding by a tenant,Eagainst any Decree or Order for his eviction”, also came to beadded. Therefore, the legislative history tends to indicate thatSections 13(1) and 13(2) are to apply in any Appeal or otherproceeding against the Order or Decree of Eviction on any of thegrounds under Section 12. [Paras 29, 30][331-G-H; 332-AH; 333- A]F

1.6 Act 27 of 1983, inserted the words “or in any Appeal orany other proceeding by a tenant against any Decree or Orderfor his eviction”. The word any” is intended to convey a widemeaning. The Decree of Eviction may be a Decree passed on anyof the grounds. It need not be onfined to a Decree passed underGSection 12(1)(a). This is also to be understood in the context ofthe words “on any of the grounds referred to in Section 12”,being used, preceded by the words in a Suit or other proceedinginstituted by the landlord. The problem persists in the form ofthe logical culmination of the command to the tenant in an AppealHor other proceeding, against any Decree of Eviction, to deposit

the rent or pay for the period, for which the tenant may havemade default. Undoubtedly, in the context of Section 12(1)(a) readwith Section 12(3), the words “for the period for which the tenantmay have made default”, is perfectly apposite. In other words,when Section 12(3) provides that no Decree shall be passed foreviction under Section 12(1)(a), if the tenant makes the depositor payment of the amount of rent, under Section 13, it is intendedto mean that, even if the tenant has invited the wrath of Section12(1)(a), he would be protected under Section 12(3), if hecomplied with Section 13, made the deposit within a period ofone month or the extended period of the service of summonsand made further deposits/payment.However, Section 13 clearlyis intended to apply in a Suit or proceeding instituted by thelandlord on any other grounds under Section 12. If that be so, thewords, “for the period, for which, the tenant may have madedefault”, may not apply, as the tenant may not be in default andno 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 intoinsignificance and irrelevance. It would then mean that, in aproceeding under Section 12, which does not involve Section12(1)a), or in other words, when there is no default within themeaning of Section 12(1)(a), the protection would be available tothe tenant, only if, he makes a deposit or payment for the periodduring the pendency of the proceeding. In other words,throughout the proceeding by the landlord, on any of the groundsunder Section 12, the tenant is obliged to deposit the amount ofrent. The failure to do so, would attract Section 13(6) and it isopen to the Court to strike off the defence and proceed furtherin the matter. [Paras 31-33][333-A-H]

1.7 If that be so, in an Appeal or any other proceeding bythe tenant against an Order of Eviction, which does not involveSection 12(1)(a), the intention of the Law- Giver appears to bethat the tenant, so described, despite the Order of Eviction andthe definition of the word “tenant” in Section 2(i), is obliged topay or deposit the amount of rent under Section 13(1) or Section13(2), as the case may be, in the manner provided, till thetermination of the Appeal or proceeding. We may profitably AB

C

DEF

G

H

AB

C

DEF

G

H

Aappreciate the problem through the prism of Section 23H, whichwe have already adverted to. Section 23H was also inserted byAct 27 of 1983. Thereunder, the provisions of Section 13 is toapply mutatis mutandis, inter alia, in respect of a proceeding forRevision under Section 23E, against an Order of Eviction underSection 23C, as they apply to a Suit or a proceeding instituted onBany of the grounds referred to in Section 12. The words “mutatismutandis”, is a well-known legislative device, employed for thepurpose of adaptation of a law in an altered context. It must beremembered that Section 13 contemplates proceedings underSection 12 and on any grounds thereunder. The impact of SectionC23H, applying Section 13 mutatis mutandis, is that, since Section12 is inapplicable in a proceeding under Section 23A, whereinthe grounds are only of bonafide requirement, as provided therein,Section 13, in its application under Section 23H, would mean thatthe proceeding by the landlord for eviction is on any of the groundsunder Section 23A. Equally, in the application of Section 13 toDthe Revision by the tenant against an Order under Section 23C,the ground of eviction, can only be the ground under Section23A. In other words, in its application to a proceeding underChapter IIIA, in a Revision by the tenant against an Order ofEviction, Section 13 is intended to apply, even though, evictionEis not based on the ground under Section 12(1)(a). This is for thereason that there cannot be an Order passed under Section 23Aon the ground under Section 12(1)(a), as the same is inapplicable.Thus, in such a Revision by a tenant against an Order underSection 23C, the presence of the words in Section 13, “for theperiod for which the tenant may have made default”, would notFbecome an insuperable obstacle. In other words, in such aRevision, the law obliges the tenant to pay the rent for the period,which may include the period, into which, he may have fallen inarrears, before the filing of the Revision and also for subsequentperiods. [Paras 34-36][334-A-D; 334-H; 335-A-D]GAshok Service Centre and others v. State of Orissa(1983) 2 SCC 82 : [1983] 2 SCR 363 – referred to.

1.8 If this is the position in respect of the manner in whichSection 13 is intended to apply, even in a proceeding underChapter IIIA, having regard to the wide words used in the newlyH

substituted avatar of Section 13, viz., “any Appeal or otherproceeding by the tenant against any decree”, the word “any”should be read harmoniously with any of the grounds referred toin Section 12, appearing earlier in Section 13. Thus, even in anAppeal or other proceeding, Section 13 would apply, despite therebeing no ground for eviction under Section 12(1)(a). The law wasso enacted by substitution in 1983, so that during any litigationlaunched by the tenant against any Order of Eviction, the landlordis assured of the amount which is calculated at the rate of rent atwhich it was being paid. Section 13(2) takes care of the situationwhere there is a dispute relating to the amount of rent.We mustnotice that the Act also does contemplate the fixation of standardrent. Section 7 deals with standard rent. It contemplates anincreased standard rent in case of a non-residentialaccommodation. Section 8 provides for lawful increase of standardrent in certain other cases. No doubt the respondent would pointout that after an order or decree of eviction is passed no applicationmay lie. Even accepting the same, nothing stands in the way ofthe 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 proceedinglaunched by the tenant, would be imperilled and an adversedecision, resulting in eviction, could follow, unless the Courtextended the time for payment of rent.Section 13(1) of the Act isa 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 beforeus, does not bear resemblance to Section 13(1) of the MadhyaPradesh Act, after the substitution took place in the year 1983.[Paras 37-39][335-E-H; 336-A-C]

1.9 The question would finally arise that in a Second Appeal,filed by the tenant, against whom an Order/Decree of Eviction ispassed, on a ground, other than under Section 12(1)(a), even afterthe tenant complies with the requirement of Section 13 anddeposits the rent, as was being paid, whether the Appellate Court,when approached by the appellants- tenants, seeking a stay ofthe execution of the Decree under Order XLI Rule 5 of the Codeof Civil Procedure, 1908 (hereinafter referred to as, ‘the Code’, AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Afor short), they could be asked to deposit an amount representinga reasonable market value of the rent. Undoubtedly, in the Act,the definition of the word “tenant”, does not include a personagainst whom an Order or Decree of Eviction has been passed.In the said sense, the Act can be treated as similar to the DelhiRent Control Act. In other words, with the Order/decree ofBEviction being passed, the person who was tenant till that pointof time, ceases to be the tenant. He would become anunauthorised occupant in the words of this Court in Atma RamProperties (supra). The principle in Atma Ram Properties (supra),therefore, would apply unless Section 13 poses an obstacle inCthe path of the Appellate Court directing the payment of the mesneprofits by the appellants as a condition of stay of execution. InSection 13 of the Act the law giver has given a section heading‘when a tenant can get benefit of protection against eviction’. Itis thereafter that the provisions are enacted. Sub section 5 ofSection 13 relates only to a suit in which the ground of eviction isDdefault of payment of rent. As far as Section 13 (6) is concerned itdeals with a situation where the tenant fails to deposit or pay theamount under Section 13 of the Act. Prior to Section 13 beingsubstituted in the year 1983 it contemplated that the court maystrike out the defence against eviction and proceed with theEhearing of the suit. It was this provision which was interpreted inShyamcharan Sharma (supra) to mean that the court still has adiscretion and is empowered to grant extension of time to payrent under Section 13. By virtue of the substitution in the year1983 in Section 13 (6) in view of the addition of the words ‘appealor proceeding as the case may be’, on the failure of the tenant toFdeposit or pay the amount as required by Section 13 the court isempowered to strike out the defence against eviction is madeapplicable to an appeal or proceeding by the tenant. An appealand proceeding can be disposed off which essentially means thatan Order of Eviction would ordinarily follow as the appeal or otherGproceeding by the tenant is against an Order of Eviction which isalready passed. [Paras 42, 44][339-C-E, H; 340-A-D]

Atma ram Properties (P) Ltd. v. Federal Motors (P) Ltd.(2005) 1 SCC 705 : [2004] 6 Suppl. SCR 843 – reliedon.

H

1.10 Now, as far as a suit for eviction based on ground otherthan Section 12(1)(a), viz., arrears of rent. Section 13 expresslydoes not provide as to what is to happen if the tenant complieswith requirement of Section 13 as distinct from the failure of thetenant to comply with Section 13. In this case we are concernedwith the former namely what would be the position if the tenantfaithfully complies with the mandate of Section 13 and hasdeposited/ paid the amount. There is no express intentionexpressed by the law giver in this regard in Section 13.Therefore,this provision indicates that despite payment being made by thetenant of the amount in terms of Section 13 in a revision filedwithin the meaning of Section 23H an order of stay of evictionmay still be necessary. In other words, ipso facto, the merepayment of the amount in terms of Section 13 would not shelterthe tenant who has filed a revision referred to in Section 23Hfrom being proceeded against in execution of the decree. Thelaw giver has contemplated an order of stay being passed in Section23F with the restraints regarding the duration of the stay orderwhich has been declared therein.Thus, the payment of the amountmentioned in Section 13 in a Chapter III proceeding by itselfmay not result in a stay of the decree or Order of Eviction. [Paras45, 47 and 48][340-D-E; G-H; 341-A-B]

1.11 In fact, in Section 13, as far as reference to rent isconcerned, the words used are “an amount calculated at the rateof rent, at which it was paid”. The further expressions used are“a sum equivalent to rent at that rate”. These expressions areused to denote the amount payable by the person described astenant, both before the Order of Eviction is passed and after theOrder of Eviction, during the pendency of appeal or proceeding,as the case may be. We are making this observation for the reasonthat if the words “an amount calculated at the rate, at which, itwas paid or a sum equivalent to the rent”, is understood asdescribing the amount, which is not the rent as such, but theamount, which, the person was obliged to pay as a tenant, afterthe Order of Eviction is passed, then, it could be said that, whatis contemplated is that, the amount directed to be paid, is treatedas not the rent as such, but the amount equivalent to the amountor an amount calculated at the rate of rent. Such an amount, being A

B

C

D

E

F

G

H

Apayable, may be reconcilable with the Order of Eviction, puttingan end to the tenancy and erstwhile tenant becoming a person inillegal possession. But herein, we may notice that the sameexpression is used even for describing the amount payable duringthe pendency of proceeding under Section 12. In other words,these words are applicable to describe the amount payable at allBpoints of time, including the pendency of the suit, appeal or otherproceedings. To make it even more clear, both, at the stage whenlandlord-tenant relationship exists and, at the stage, whenfollowing an Order of Eviction, going by the definition of ‘tenant’in Section 2 of the Act, the erstwhile tenant would cease to be aCtenant, the amount payable in Section 13 is described in the similarmanner. In fact, there is no case as such that the amount which ispaid by the tenant in Section 13 is anything but the agreed rent.However, for reasons which follow, it will not advance the case ofthe appellants.As far as the aspect about the former tenant, evenafter the Order of Eviction being referred to as a tenant, evenDwhen he maintains an appeal against a Decree/Order of Evictionis concerned, we would think that it can be a legislative device toaptly describe the person in question devised by the Legislature.In this regard, the more important question is, whether after theOrder of Eviction is passed, the erstwhile tenant would remain aEtenant in law. The tenant begins his innings ordinarily as acontractual tenant. In the case of a contractual tenant, upon theexpiry of the lease, he is under the Transfer of Property Act and,in accordance with the contract, duty-bound to vacate thepremises and deliver possession to the landlord. Failure on hispart to do so, would expose him to an action for mesne profits, onFthe basis that his continuance after the period and contrary tothe contract, would be wrongful. In the case of a statutory tenant,which, undoubtedly, the tenant was, the mere expiry of thecontractual lease, does not result in the tenancy coming to anend under the laws relating to the statutory tenancy. It is with theGOrder of Eviction, which is passed, that the erstwhile tenantceases to be the tenant. After the Order of Eviction is passed,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 enablesthe filing of appeal or other proceeding by the erstwhile tenant.H

The law prescribes the period of limitation. Does it mean thatthe possession of the erstwhile tenant or rather his occupation ofthe premises, after the Order of Eviction, is not wrongful? Whatwill be the position, if he prefers an appeal, after a long delay anddelay is condoned? Can it be said that during the period delay, atany rate, that the erstwhile tenant sheds his character as illegaloccupant? We would think that with the passing of Decree orOrder of Eviction, the erstwhile tenant, no longer, remains atenant. He continues to occupy the premises, which, in law, iswrongful. Under the law, generally, continued occupation of atenant, after the expiry of the lease, may not make him atrespasser, as his original entry was lawful. For the purpose ofmesne profits, however, whether it be under the general law orunder the Rent Statute, once, the tenancy itself comes to an end,which in the case of statutory tenancy occurs with the passing ofthe Order of Eviction and, in the case of the contractual tenancy,upon the expiry of the lease, the possession of the erstwhiletenant, indeed, becomes wrongful. The fact that the law permitsthe filing of an appeal or other proceeding, will not detract fromthe aforesaid position. This position is self-evident from thedecision in Atma Ram (supra). The Judgment in Atma Ram (supra)makes it clear that the erstwhile statutory tenant would becomean unauthorised occupant upon the passing of the Order by theoriginal Forum. This Court has further held that fact that the Orderof Eviction has been challenged in an appeal or revision and it isconfirmed at a later point, will not enable the erstwhile tenant tocontend that he would remain a tenant even after the Decree/Order of Eviction. [Paras 54-56][342-G-H; 343-A-H; 344-A-F]

1.12 Once this position at law is kept in mind, the impact ofSection 13 of the Act, will become clear. We have already noticedthat the actual protection, which is provided in Section 13 of theAct, as far as the cases we are concerned with, is contained inSection 13(6) of the Act. Upon the tenant, as described in Section13, paying the amounts as provided therein, the tenant is allowedto, inter alia, prosecute the appeal or other proceeding. The failureto comply with Section 13, will result in the consequences, whichare provided therein. Since, we are concerned here with theconsequences of tenant acting in conformity of Section 13 of the ABCDEF

G

H

ABCDEF

G

H

AAct, apart from noticing, what we have already indicated, we wouldexamine, whether it has the effect, which is canvassed for by theappellants.We are of the view that even though Section 13 doesrefer to the erstwhile tenant as a tenant and it obliges him todeposit throughout the proceedings, the amounts, which can betreated as the rent being paid, which would be contractual rentBor even the rent fixed as the standard rent, this does not, byitself, alter the effect of the Decree/Order of Eviction passed bythe Court, by which, he stood deprived of the status of a tenant.The filing of an appeal or other proceeding by the tenant, doesnot make the Decree inexecutable. The preferring of an appealCor other proceeding, would not bring about a stay of theproceedings based on the Decree or Order of Eviction. Thepayment of the amounts under Section 13(1) or Section 13(2) ofthe Act, does not, by itself, bring about the stay of the Decree orOrder of Eviction. The net result is, the principle in law and, asrecognised in Section 2(i) of the Act, and, as interpreted in AtmaDRam (supra), that with the passing of the Order of Eviction bythe 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 stooddeprived of the status of a tenant, does not regain the said statusEby mere reason of the fact that in Section 13 of the Act, he isreferred to as the tenant. The position of the erstwhile tenantunder the Act, going by the definition in Section 2(i) of the Act,will continue to hold the field, even after an appeal or otherproceeding is maintained by him. Therefore, Section 13 of theAct, in our view, despite the unique provision contained therein,Fdoes not affect the position at law, which stands declared in AtmaRam (supra). Undoubtedly, in keeping with the view expressedby the larger Bench decisions of the High Court, which we havereferred to, the Legislature wanted to ensure that even duringthe appeal filed by the tenant, inter alia, he would continue to payGthe agreed rent. [Paras 57, 58][344-G-H; 345-A-F]

1.13 The erstwhile tenant, such as the appellants in thesecases, despite making payment, in accordance with Section 13 ofthe Act, would not be protected from being evicted in terms ofthe Decree/Order of Eviction during the pendency of the appeal H

or proceeding. It is open to the appellant, inter alia, in challengingthe Decree/Order of Eviction to seek stay of the Decree/Orderof Eviction. It is then that the Appellate Court can exercise itspowers under Order XLI Rule 5 of the CPC.We have foundreinforcement in Section 23F of the Act falling in Chapter IIIA,which also contemplates Orders of Stay being passed, even thoughSection 13 has been made applicable by virtue of Section 23H.As regards the power of the Appellate Court, to grant a stay, it isclear that it is open to the Appellate Court, to impose suchcondition, as it thinks fit. It can issue directions, as held by thisCourt in Supermax International (supra). Once we proceed onthe basis that with the Decree of Eviction being passed, theerstwhile tenant becomes an unauthorised occupant and he makeshimself liable to pay mesne profits for his continued occupation,such an erstwhile tenant can, indeed, be called upon to pay mesneprofits. Undoubtedly, there is power with the Appellate Court, inthis regard.We have, no doubt, noticed the view taken by thelarger Bench of the High Court (which, in fact, paved the way forthe substitution of Section 13 in the year 1983) that the Court,after finding that Section 13, with which it was concerned, did notcontemplate any duty on the part of the tenant to deposit theagreed rent, in an appeal filed by him, did observe that in such ascenario, it will be open to the landlord to execute the Decreeand if the tenant files an application under Order XLI Rule 5 ofthe CPC, the tenant can be asked to deposit the rent. No doubt,the legislative intervention in 1983 through substitution of Section13, may have been inspired by the judicial exposition and,therefore, one of the principles of interpretation being that theLegislature must be treated as having in mind the law asinterpreted by the Court to be implemented, thus, it could beurged that when an application is filed under Order XLI Rule 5,even after the substitution of Section 13, when the tenant is calledupon to deposit the agreed rent, then, even in the matter ofimposing condition under Order XLI Rule 5, the tenant cannotbe worse off than when Section 13 was in its earlier avatar. Inother words, with the deposit of the agreed rent, there would beno occasion to deposit any further amount, even under OrderXLI 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 AB

C

DEF

GH

AB

C

DEF

GH

Afollowed in Supermax International (supra), in the manner alreadyreferred 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 totake other proceedings, will not clothe him with rights as a tenant.The fact that the finality of the Decree of Eviction is attained at aBlater stage, will not be sufficient to extricate him from his positionas an unauthorised occupant in the interregnum. This has theinevitable consequence that during such interregnum, theerstwhile tenant, being in the position of an unauthorisedoccupant, he becomes liable to pay mesne profits. Once thisCposition is clear, then, the necessary corollary is, even after thesubstitution of Section 13, it would be open to the Appellate Courtto impose the condition that appellant seeking to contest theDecree of Eviction, shall deposit a reasonable sum, which is notto be limited to the agreed rent. This position is also betterunderstood in the light of the plight of the landlords, who areDforced to wait for long, the realisation of the fruits of the Decreefor Eviction, which they have obtained. In fact, this aspect, as tothe entitlement of the landlord for an amount in excess of theagreed rent, in the light of the Decree of Eviction, as such, wasnot considered by the larger Bench of the High Court. At anyErate, in the light of the Judgments of this Court, there cannot beany dispute about the principle that upon a Decree of Evictionbeing passed, the erstwhile tenant becomes an unauthorisedoccupant and remains one thereafter during the entireproceedings. The fact that there is power to fix standard rentcannot affect this position. In fact, the respondent would pointFout that after the eviction is ordered even the power to fix standardrent ceases as the tenancy comes to an end. [Paras 59-61][345-G-H; 346-A-H; 347-A-D]

1.14 It is undoubtedly true that the existence of powerunder Order XLI Rule 5 of the CPC, is not to be confused withGthe exercise of its power by an Appellate Court. That there ispower with the Appellate Court, may not enable it to Order anyunreasonable amount or reach a windfall to the landlord. Thepower is to be exercised on a careful consideration of the facts ofeach case. It will include the quantum of agreed rent, which theHtenant is paying under Section 13 of the Act. It will consider whether the said sum is the result of any fixation of standardrent. If so, what is the point of time, at which, the agreed rent wasarrived at, the nature of the premises and all other relevant facts.It may include a case where the Appellate Court, on a perusal ofthe impugned Judgment, is convinced, prima facie, no doubt, thatthe Decree for Eviction is palpably insupportable, in which case,it may grant a stay, without calling upon the tenant to pay any sumin excess of amount fixed in Section 13 of the Act.We are unableto accept the appellants case that Section 13 of the Act, being aspecial law, the power under Order XLI Rule 5, cannot beexercised to direct deposit or payment of mesne profits.Compliance with Section 13 by the appellants, does not, as foundby us, amount to a stay of the Decree for Eviction. The power ofthe Appellate Court to impose conditions for staying the Decree,cannot be confined by the dictate in Section 13 of the Act, to theappellants/tenants, to deposit the agreed rent, particularly, havingregard to the time consumed in litigation and, more importantly,the impact of the Decree of Eviction, depriving the appellant ofhis status as a tenant.The upshot of the above discussion is thatwe reject the contention of the appellants that Section 13 of theAct will detract from the principle in Atma Ram (supra) andSupermax International (supra) being available to the cases underthe Act. [Paras 62-64][347-E-H; 348-A-C]

1.15 Coming to the facts, the rent being paid for 100 squarefeet of non-residential accommodation by one of the appellants isRs.622/-, fixed in 1975. In the other case, the rent canvassed bythe appellant, as being the agreed rent, was a monthly rent ofRs.847/-, fixed in the year 1975. The premises in question is alsonon- residential and it consists of 150 square feet. There is noreference to the rent beingfixed in proceedings for fixing thestandard rent. The Suit was filed in the year 2009. The Decreefor Eviction was passed in the year 2013. The First AppellateCourt dismissed the appeal filed by the appellants on 25.03.2014.The Second Appeal was filed in the year 2014. The impugnedOrders came to be passed on 17.03.2020 and 25.08.2021 at thestage of second appeal when two courts have found against theappellants. The amount has been fixed at Rs.18,000/- per month.The amount has been fixed on the basis of the Report submitted AB

C

DE

F

G

H

Aby the Rent Controlling Authority, who was asked to reportregarding the market rate of the accommodation in question. Thecomplaint of the appellant is that the Rent Controlling Authorityhas tendered its Report and,while doing so, adequate opportunitywas not provided and the materials placed were not consideredand that the amount is unreasonable. It is said to be based onlyBon the Panchnama prepared by the Revenue Officer. The HighCourt has found that the premises are located in a famouscommercial place and the rent of Rs.847/- per month was fixed inthe year 1975. We do not think that the appellants should bepermitted to challenge the quantum, once we have answered theClegal issues flowing from Section 13, against the appellants. Itwould appear from the written submission that the appellants havedeposited certain sums in execution of the orders. The appellantswill be entitled to adjust the said amount in complying with theimpugned orders. The amount of Rs.18000/- will subsume theamount paid/payable under Section 13 of the Act.Thus, in theDfacts of this case, we would think that the direction to pay theentire amount, may require modification. Equally, we are of theview that some time must be granted to deposit the amount. [Paras65, 66 and 68][348-C-H; 349-E-F]

State of Maharashtra v. M/s. Super Max InternationalEPvt. Ltd. (2009) 9 SCC 772 : [2009] 13 SCR 801 –relied on.

Shrimati Chander Kali Bai and others v. Shri JagdishSingh Thakur and another (1977) 4 SCC 402 : [1978]1 SCR 625; Shyamcharan Sharma v. Dharamdas (1980)F2 SCC 151 : [1980] 2 SCR 334; M/s. Frick India Ltd.v. Union of india and others 1990 (1) SCC 400 : [1989] 2 Suppl. SCR 570; Pushpa Devi and Others v. MilkhiRam (Dead) by his Lrs. 1990 (2) SCC 134 : [1990]1 SCR 278; Jamnalal and others v. Radheshyam (2000)G4 SCC 380 : [2000] 3 SCR 135; Satyawati Sharma(D) by Lrs. v. Union of India and another (2008) 5 SCC287 : [2008] 6 SCR 566 – referred to.

Mankunwar Bai and others v. Sunderlal Jain AIR 1978MP 165 / 1979 ILR MP 676; S.S. Harishchandra Jain H

and others v. Dr. Captain Indersingh Bedi AIR 1977

MP 1991 – referred to.

Case law reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.5996-5997 of 2021.

From the Judgment and Order dated 17.03.2020 and 25.08.2021of the High Court of Madhya Pradesh at Jabalpur in Second AppealNo.523 of 2014.

With

Civil Appeal Nos.5998-5999 of 2021.

Ms. Shobha Menon, Sr. Adv., Akshat Shrivastava, Advs. for theAppellant.

Amit Sahni, Arjun Garg, Priyankush Jain, Shobhit Jain, AakashNandolia, Ms. Sagun Srivastava, Advs. for the Respondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The appeals raise certain common questions apart from therespondent being common. Hence the common judgment. By theimpugned orders passed in these cases, the High Court while allowing A

B

C

D

E

F

G

H

Athe application filed by appellants under Order XLI Rule 5 of the Codeof Civil Procedure and applications for an appropriate direction to theappellants to pay mesne profits along with the regular monthly rent anddamages filed by respondent, directed that the appellants shall pay therent of suit shops at the rate of Rs.18000/- per month to the respondentfrom the date of decree passed by the lower Appellate Court till theBdisposal of the Second Appeals. The appellants were directed to pay theentire arrears of rent within aperiod of 2 months failing which the interimorder of protection from eviction under the decree was to stand vacated.

2. The Respondent is the landlady of the Appellants in both theappeals. In SLP (Civil) No. 14357-58 of 2021, the appellant was inductedCas a tenant of anon-residential accommodation of 150 square feet for amonthly rent of Rs. 847/- in the year 1975. On 06.08.2009 the Respondentfiled a suit under Section 12 (1)(a), (c), (f) and (h) of the Madhya PradeshAccommodation Control Act, 1961,(hereinafter referred as ‘the Act’).Apart from eviction the respondent also sought a decree for mesne profit.DThe trial court decreed the suit and ordered eviction under Section 12(1)(f) and (h) of the Act. First Appeal filed by the appellantstood dismissedby judgment dated 25.03.2014. It is thereupon that the appellant filed aSecond 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 DirectionsEas Reply to the application under Order 41 Rule 5 of CPC. The courtdirected on 25.04.2016, the Rent Control Authority to submit a reportregarding the prevailing market rate of accommodation in question makingit clear that the calling of such report did not mean that a decision wastaken on the question whether direction could be issued on the applicationFfiled by the respondent. On 16.09.2016 the Second Appeal came to beadmitted. The interim order which was passed earlier came to be madeabsolute. The Rent Control Authority, it is alleged, without affordingopportunity to the appellant, submitted a report which was prepared relyingon the Panchnama of the Revenue Inspector. On 17.03.2020, the court proceeded to pass the impugned order directing the appellant to pay theGmesne profit of Rs. 18000/- per month. It was the case of the appellantthat he came to know about the order when the respondent moved anapplication for executing the order dated 17.03.2020 and an applicationfor recall filed by the appellant of the order dated 17.03.2020 came to bedismissed.H

3. In the other appeal, the appellant was likewise inducted into anon-residential accommodation admeasuring 100 square feet on amonthly rent of Rs. 622/-. Otherwise by the order impugned the appellanthas asked to pay rent at the rate of Rs. 18,000/- per month.

4. We heard the learned SeniorCounsel for the Appellant, ShrimatiShobha Menon and Shri Amit Sahni, learned Counsel for the Respondent.The contention raised by the appellant revolves around the properinterpretation to be placed on Section 13 of the Act. It is the complaint ofthe appellant that the High Court has not borne in mind that the presentavatar of Section 13 was a product of a substitution effected in the year1983. It is contended that the decisions of this court in Atma ramProperties (P) Ltd. v. Federal Motors (P) Ltd.1and State ofMaharashtra v. M/s. Super Max International Pvt. Ltd.[2], which relatedto the Delhi Rent Control Act and the provisions relating to Rent Controlin Bombay respectively would not apply. This is for the reason that thecases arising within the state of Madhya Pradesh must be dealt withunder Section 13 of the Act. Section 13 protects a tenant even duringthe pendency of an appeal against the order of eviction as long as hedeposited the agreed rent. In this case thereis no dispute relating to therent. Per contra,Shri Amit Sahni would point out that on a properconstruction of the Section 13 of the Act along with the other relevantprovisions, the conclusion is inevitable that the impugned order was fullyjustified.

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 landlordon any of the grounds referred to in Section 12 or in any appeal orany other proceeding by a tenant against any decree or order forhis eviction, the tenant shall, within one month of the service ofwrit of summons or notice of appeal or of any other proceeding,or within one month of institution of appeal or any other proceedingby the tenant, as the case may be, or within such further time asthe Court may on an application made to it allow in this behalf,deposit in the Court or pay to the landlord, an amount calculatedat the rate of rent at which it was paid, for the period for whichthe tenant may have made default including the period subsequent 1(2005) 1 SCC 705

2 (2009) 9 SCC 772

A

B

C

D

E

F

G

H

Athereto up to the end of the month previous to that in which thedeposit or payment is made ; and shall thereafter continue to depositor pay, month by month by the 15th of each succeeding month asum equivalent to the rent at that rate till the decision of the suit,appeal or proceeding, as the case may be.

B(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 thatbehalf which shall be taken at the earliest opportunity during suchsuit or proceeding, fix a reasonable provisional rent, in relation tothe accommodation, to be deposited or paid in accordance withCthe provisions of sub-Section (1) and no Court shall, save forreasons to be recorded in writing, entertain any plea on this accountat any subsequent stage].

(3) If, in any proceeding referred to in sub-Section (1), there isany dispute as to the person or persons to whom the rent is payable,Dthe Court may direct the tenant to deposit with the Court theamount payable by him under sub-Section (1) or sub-Section (2),and in such a case, no person shall be entitled to withdraw theamount in deposit until the Court decides the dispute and makesan order for payment of the same.

E(4) If the Court is satisfied that any dispute referred to in sub-Section (3) has been raised by a tenant for reasons which arefalse or frivolous, the Court may order the defence against evictionto be struck out and proceed with the hearing of the suit.

(5) If a tenant makes deposit or payment as required by sub-Fsection (1) or sub-Section (2), no decree or order shall be madeby the Court for the recovery of possession of the accommodationon 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 bythis Section, the Court may order the defence against eviction toGbe struck out and shall proceed with the hearing of the suit, appealor proceeding, as the case may be.]”

6. It is to be noticed that Section 13 before being substituted in theHyear 1983 read as follows: - “13. When tenant can get benefit of protection againsteviction.—(1) On a suit or proceeding being instituted by thelandlord on any of the grounds referred to in Section 12, the tenantshall, within one month of the service of the writ of summons onhim or within such further time as the court may, on an applicationmade to it, allow in this behalf, deposit in the court or pay to thelandlord an amount calculated at the rate of rent at which it waspaid, for the period for which the tenant may have made defaultincluding the period subsequent thereto up to the end of the monthprevious to that in which the deposit or payment is made and shallthereafter continue to deposit or pay, month by month, by the 15thof each succeeding month a sum equivalent to the rent at thatrate.

(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 theaccommodation to be deposited or paid in accordance with theprovisions of sub-section (1) till the decision of the suit or appeal.

(3) If, in any proceeding referred to in sub-section (1), there isany 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 amountpayable by him under sub-section (1) or sub-section (2), and insuch a case, no person shall be entitled to withdraw the amount indeposit until the court decides the dispute and makes an order forpayment 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 arefalse or frivolous, the court may order the defence against evictionto 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 madeby the court for the recovery of possession of the accommodationon the ground of default in the payment of rent by the tenant, butthe 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 bythis section, the court may order the defence against eviction tobe struck out and shall proceed with the hearing of the suit.”

AB

C

D

E

F

G

H

A7. It is the further case of the landlady that the definition of theword 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 thepassing of an order of eviction the erstwhile tenant would cease to be atenant. Therefore, on the principle enunciated in Atma Ram Properties(supra) and M/s. Super Max (supra) there can be no rationale or logicBto not extend the said principle and vouchsafe the same measure ofjustice to the landlady. He would further point out that what Section 13actually provides is that the tenant must continue to pay the rent evenduring the pendency of the appeal.The actual protection against evictionhowever is provided when the ground for eviction is arrears of rent. InCthis regard he drew support from Section 13 (5). Section 13(5),he pointsout, protects a tenant, who is found to be in default of the payment ofrent and an order of eviction is sought,(being protected) from eviction aslong as he continues to pay the rent. As far as other grounds for evictionagainst a tenant being successfully pressed by the landlord culminatingin an order of eviction being passed and upon an appeal being filed byDthe tenant as he loses the status of a tenant going by the definition of theword of tenant when an order is passed under Order XLI Rule 5 of theCPC, the Appellate Court is fully justified in putting the appellants toterms by way of ordering of reasonable amount as rent as a conditionfor the grant of stay of eviction. He pointed out that Section 13 (1) doesEnot use the word rent.

THE CASE LAW RELIED UPON BY THE PARTIES

8. In Shrimati Chander Kali Bai and others v. Shri JagdishSingh Thakur and another3, the case arose under the act in question.The third contention of the appellants tenants against whom the firstFAppellate Court had decreed the suit, which was for eviction, arrears ofrent and also for past and future damages was that the decree for damagescould not be awarded from the date of the termination of contractualtenancy. It was contended that it could be awarded from the date of theEviction Decree. This Court accepted the said contention based on theGdefinition of the word tenant in the Act. In regard to Section 13 of theAct as it stood prior to the substitution we notice the following discussion:- “9. Mrs Seth in support of her argument rightly pressed into servicea few other provisions of the Act. Section 13(1) giving protection 3 (1977) 4 SCC 402H

against eviction on the ground of default in payment of rent providestherein that even after the institution of the suit if he clears off theamount of rent due within a period specified in the section andthereafter “continue to deposit or pay, month by month, by thefifteenth of each succeeding month a sum equivalent to the rentat that rate” calculated at the rate of rent at which he was payingearlier, no decree for eviction can be passed. The conclusion isinevitable, therefore, that if a suit is filed on the ground of non-payment of rent after termination of the contractual tenancy, thetenant still continues to be a tenant liable to pay rent not only forthe past period but in future also. In absence of a decree of evictionthe person in occupation of the accommodation continues to be atenant and is not liable to pay any damages as his occupation isnot unauthorised or wrongful even after the termination of thecontractual tenancy.In Damadilal case, Gupta, J. delivering thejudgment of this Court has said at p. 653 (SCC p. 864) withreference to the definition of tenant in Section 2(i) of the Act:

“The definition makes a person continuing in possession afterthe determination of his tenancy a tenant unless a decree ororder for eviction has been made against him, thus putting himon par with a person whose contractual tenancy still subsists.The incidents of such tenancy and a contractual tenancy musttherefore be the same unless any provision of the Act conveyeda contrary intention. That under this Act such a tenant retainsan interest in the premises, and not merely a personal right ofoccupation, will also appear from Section 14 which containsprovisions restricting the tenant’s power of sub-letting.””

9. In Shyamcharan Sharma v. Dharamdas4, a Bench of 3learned Judges had occasion to deal with the impact of Section 13 priorto it being substituted in the year 1983. This Judgement is relied upon bythe respondent landlady. It was a case, where a suit was filed for evictionon the ground of arrears of rent and bonafide requirement. The groundof bonafide did not appeal to any of the courts. As regards the ground ofarrears of rent, the trial court protected the tenant under Section 12(3)of the Act. In appeal by the landlord, an application seeking condonationof delay in depositing rent month by month payable after the filing of the A

B

C

D

E

F

G

H

Asuit came to be rejected by the High Court holding that the court did nothave power to extend the time. The respondent relied upon the followingexposition.

“4. It is true that in order to entitle a tenant to claim the protectionof Section 12(3), the tenant has to make a payment or deposit asBrequired by Section 13, that is to say, the arrears of rent should bepaid or deposited within one month of the service of the writ ofsummons on the tenant or within such further time as may beallowed by the court, and should further deposit or pay everymonth by the 15th, a sum equivalent to the rent. It does not,however, follow that failure to pay or deposit a sum equivalent toCthe rent by the 15th of every month, subsequent to the filing of thesuit for eviction, will entitle the landlord, straightway, to a decreefor eviction. The consequences of the deposit or payment andnon-payment or non-deposit are prescribed by sub-sections (5)and (6) of Section 13. Since there is a statutory provision expresslyDprescribing the consequence of non-deposit or non-payment ofthe rent, we must look to and be guided by that provision only todetermine what shall follow. Section 13(6) does not clothe thelandlord with an automatic right to a decree for eviction; nor doesit visit the tenant with the penalty of a decree for eviction beingstraightway passed against him. Section 13(6) vests, in the court,Ethe discretion to order the striking out of the defence againsteviction. In other words, the court, having regard to all thecircumstances of the case, may or may not strike out the defence.If Section 13 were to be construed as mandatory and not as vestinga discretion in the court, it might result in the situation that a tenantFwho has deposited the arrears of rent within the time stipulatedby Section 13(1) but who fails to deposit thereafter the monthlyrent on a single occasion for a cause beyond his control may havehis defence struck out and be liable to summary eviction. Wethink that Section 13 quite clearly confers a discretion, on thecourt, to strike out or not to strike out the defence, if default isGmade 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 atenant committing default in payment or deposit as required bySection 13(1), the court surely has the further discretion to condonethe default and extend the time for payment or deposit. Such adiscretion is a necessary implication of the discretion not to strike H

H

out the defence. Another construction may lead, in some cases,to a perversion of the object of the Act, namely, “the adequateprotection of the tenant”. Section 12(3) entitles a tenant to claimprotection against eviction on the ground specified in Section12(1)(a) if the tenant makes payment or deposit as required bySection 13. On our construction of Section 13 that the court hasthe power to extend the time for payment or deposit, it must followthat payment or deposit within the extended time will entitle thetenant to claim the protection of Section 12(3). One of thearguments advanced before us was that there was no expressprovision for extension of time for deposit or payment of monthlyrent subsequent to the filing of the suit whereas there was suchexpress provision for payment or deposit of arrears of rent thathad accrued before the filing of the suit. Obviously, expressprovision for extension of time for deposit or payment of rentfalling due after the filing of the suit was not made in Section13(1) as the consequence of non-payment was proposed to bedealt with by a separate sub-section, namely, Section 13(6). Expressprovision had to be made for extension of time for deposit orpayment of rent that had accrued prior to the filing of the suit,since that would ordinarily be at a very early stage of the suitwhen a written statement might not be filed and there would,therefore, be no question of striking out the defence and, so, therewould be no question of Section 13(6) covering the situation.”

10. We must notice that the respondent landlady is obviouslypressing the point that the purport of Section 13 cannot be divorced fromthe ground of eviction namely the tenant committing default in paymentof rent before the suit or during the pendency of the proceeding. In RamMurti vs. Bhola Nath and another5, this Court purported to follow theJudgment in Shyamcharan Sharma(supra). The case arose under theDelhi Rent Control Act. In short, the principle that emerges is that thecourt has power to extend the time to pay the defaulted rent instead ofstriking out the tenant’s defence against eviction. The respondent reliedon M/s. Frick India Ltd. v. Union of india and others6 for theproposition that the heading of a section cannot control the meaning ofthe provision. This again we must notice is an attempt to persuade thecourt that it must not be overwhelmed by the heading of Section 13which declares as follows: - 5 (1984) 3 SCC 111

6 1990 (1) SCC 400

A

B

C

D

E

F

G

H

320SUPREME COURT REPORTS

A“When tenant can get benefit of protection against eviction”.

11. In Pushpa Devi and Others v. Milkhi Ram (Dead) by hisLrs.7, which is relied upon by the appellants, this court laid emphasis onimportance of contextual construction of a statue. We notice the followingstatements: -B

“18. It is true when a word has been defined in the interpretationclause, prima facie that definition governs wherever that word isused in the body of the statute unless the context requiresotherwise. “The context” as pointed out in the book Cross-Statutory Interpretation (2nd edn. p. 48) “is both internal andCexternal”. The internal context requires the interpreter to situatethe disputed words within the section of which they are part andin relation to the rest of the Act. The external context involvesdetermining the meaning from ordinary linguistic usage (includingany special technical meanings), from the purpose for which theprovision was passed, and from the place of the provisions withinDthe general scheme of statutory and common law rules andprinciples.

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

12. In Jamnalal and others v. Radheshyam8, this court consideredSection 13 again prior to it being substituted in the year 1983. We noticeFthe following:

“11. The scheme of Section 13 of the Act suggests that theprovisions thereof are intended for the benefit of both the tenantas well as the landlord. While Section 13 affords protection to adefaulting tenant, willing to abide by the obligation to pay the rentGregularly, against eviction on the ground of default in payment ofrent, it also ensures payment of rent to the landlord, which he isentitled to receive for both the pre-litigation period as well as duringthe pendency of the litigation. A perusal of sub-section (1) of Section 7 1990 (2) SCC 1348 (2000) 4 SCC 380H

13 discloses that it imposes twin obligations on the tenant againstwhom a suit or proceeding is instituted on any of the groundsmentioned in sub-section (1) of Section 12. The first is that withinone month of the service of the writ of summons on him or withinsuch 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 tothe landlord an amount, representing (a) arrears of rent for theperiod for which the tenant may have made default, and (b) rentfor the period subsequent thereto up to the end of the monthprevious to that in which the deposit or payment is made, dulycalculating the same at the rate of rent at which it was paid. Andthe second is payment/deposit of rent for the period thereafter,that is, future rent which he shall continue to deposit or pay, monthby month, by the 15th of each succeeding month, at that rate. Forthe purpose of depositing the amount of rent, sub-section (1) refersto 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 ofdemand till the date of deposit of rent in court; and

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

The following illustration will help in elucidating the import of theprovisions under consideration; if a tenant has last paid rent oftenanted premises, say, @ Rs 1000 for the month of January anddid not pay for the months of February, March and April andnotice of demand claiming arrears of rent for those months wasserved on him in May, the Act permits him to pay the arrears ofrent within two months of service of demand, i.e., till the end ofJuly. Assuming he has failed to do so and the landlord files the suitunder Section 12(1)(a) of the Act of which writ of summons isserved on the tenant on September 15, for his appearance in thecourt, he has the second opportunity to pay arrears of rent incourt within one month of service of summons on him i.e. tillOctober 14 or within such further time as the court may allow;but at that stage along with arrears of rent for the said months hehas also to pay/deposit rent for the months from May to the end A

B

C

D

E

F

G

H

of September. The second obligation of depositing the future rentcontinuously from month to month covers the period commencingfrom October and ending with the decision of suit or appeal. Thearrears of rent and the future rent for each month, in the illustration,have to be calculated at the rate of Rs 1000.

A

12. The above stated two obligations are independent of eachBother. Compliance with the second does not depend upon fulfilmentof the first obligation. It is evident that Section 13(1) applies toinstitution of a suit on any of the grounds in clauses (a) to (p) ofSection 12(1) and not merely to one under clause (a) — default inpayment of rent. In cases under clauses other than (a), the tenantsCmight have been paying the rent regularly and the question ofpayment/deposit of arrears of rent or rent for the period subsequentto service of summons, may not arise. Can then, based on theword “thereafter”, it be argued that there will be no liability todeposit future rent — the second obligation noted above. In ourview such a contention will be defeating the object of the provisionDand will be impermissible. Having stated how the amount of rentpayable by the tenant for the periods specified therein should becalculated and deposited, the provision imposes further obligationto deposit the rent month by month till the termination of the suitor proceedings. The word “thereafter” is merely indicative of theEsequence of the second obligation to deposit the future rents; it iscertainly not suggestive of the fact that if the first obligation forany reason cannot be complied with then the occasion to complywith the second obligation does not arise or that it automaticallycomes to an end. It would be unthinkable that that could be theintention of the legislature.”

F

13. In Sobhagyamal and another v. Gopal Das Nikhra9, thiscourt had occasion to deal with Section 13 after it was substituted and inthe form in which it arises for our consideration. It was a case wherethe tenant stood protected from eviction in the first round of litigationGwhere the landlord set up the plea of arrears of rent. However, while thematter was pending before this courtin SLP, the tenant had committeddefault 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 premiseslet out to him only on the ground(s) enumerated in Section 12 ofthe Act. Clause (a) of sub-section (1) of Section 12 of the Actauthorises the landlord to seek ejectment of his tenant if he hasneither paid nor tendered the whole of the arrears of rent legallyrecoverable from him within two months of the service of noticedemanding the arrears of rent. Sub-section (3) of Section 12 putsa caveat on the right of the landlord to get ejectment on the groundof arrears of rent if the tenant makes payment or deposit asrequired by Section 13. However, by virtue of the proviso to sub-section (3), the benefit given to the tenant, on compliance with thepayment of rent as provided under Section 13, would be availableto him only once in respect of that accommodation, but on defaultin the payment of rent in respect of same accommodation forthree consecutive months he would not be entitled for protectionby depositing the rent as provided under Section 13 in thesubsequent proceedings initiated by the landlord for ejectment ofthe tenant on the ground of arrears of rent.

10. Section 13 of the Act requires that the tenant shall within onemonth of the service of writ of summons or notice of appeal or ofany other proceeding deposit the rent when the proceedings areinitiated by the landlord on any of the grounds referred to in Section12 or within one month of institution of appeal or any otherproceeding when taken by the tenant against any decree or orderfor his eviction. The period of one month given to the tenant fordepositing the rent from the date of the summons or the notice ofappeal or of any other proceeding could be extended by the courton an application made to it. The rent which is required to bedeposited under the section can be in the court or it may be madeover to the landlord. The section further requires that after thedeposit of the arrears of rent the tenant shall continue to makedeposit or pay month by month by 15th of each succeeding montha 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) ofSection 13 provides that if the tenant makes deposit or paymentas required by sub-section (1) or sub-section (2) no decree ororder shall be made by the court for recovery of possession onthe 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 AB

C

D

E

F

G

H

Adeposit the rent or pay it to the landlord as required under Section13 to move an application for the defence against eviction to bestruck out. Sub-section (5) of Section 13 has no application in acase when the ejectment is not sought by the landlord on theground of arrears of rent, but the suit is instituted by the landlordon any other ground(s) of Section 12 of the Act. Striking out ofBthe defence of the tenant on an application moved by the landlord,is a provision applicable in the suit for ejectment on any of thegrounds mentioned under Section 12 inclusive of under Section12(1)(a) of the Act, whereas sub-section (5) of Section 13 wouldapply only when the suit is instituted for ejectment on the groundCof arrears of rent under Section 12(1)(a) of the Act.

11. From the aforesaid, it is clear that Section 12(3) of the Actprovides for an exception to the general rule contained in Section12(1)(a) that in the event tenant becomes a defaulter, he is liableto be evicted. From the proviso to Section 12(3) of the Act, it isDclear that the protection given to the tenant is only one-timeprotection. Proviso appended to Section 12(3) controls the mainprovisions. The exemption contained in Section 12(3), thus, is notextended to the tenant who becomes a defaulter for more thanonce. In view of the aforesaid, we are of the opinion that once thetenant had availed the benefit of the proviso to Section 12(3) ofEthe Act, the said benefit was not available to the tenant incommitting a further default in payment of rent for threeconsecutive months.”

14. Respondent relies upon decision of the Full Bench inMankunwar Bai and others v. Sunderlal Jain10. The question, whichFarose was, whether the tenant was obliged to pay time-barred rent underthe first part of Section 13(1) of the Act. No doubt, the Court was dealingwith Section 13 prior to substitution in 1983. The Court went on to holdthat 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 theGarrears of rent must be legally recoverable from the tenant. In the courseof the said Judgment, the Court held that the expression, “the periodfor which the tenant may have made default”, as pointed out above,refers to the default under Section 12(1)(a).

10 AIR 1978 MP 165/ 1979 ILR MP 676H

10 AIR 1978 MP 165/ 1979 ILR MP 676H

15. The definition of the word “tenant” in Section 2(i) undoubtedlydoes not include any person against whom an Order or Decree forEviction has been made. It would not include even a tenant, againstwhom, an Order of Eviction has been made under Section 12(1)(a),which provides that default in payment of rent within two months of thedemand for the arrears of rent, shall be a ground to evict. Section 13 onthe other hand starts with the heading ‘when tenant can get the benefitof protection against eviction’. It is correct that the heading of a sectioncannot control the construction of the provision itself. The provision, asit unfolds under the heading, must be given the full meaning according tothe principles of interpretation, which the court is persuaded to apply.The only area where the heading may be useful is when the provision isshrouded in ambiguity.The heading may shed some light, however, faintit may be.

16. The provisions of Section 13, as it stood prior to substitution inthe year 1983, did not embrace a situation where any Appeal or otherproceeding was filed by a tenant. On the other hand, under the erstwhileavatar, the Law-Giver confined the provision to a situation where a Suitor proceeding was instituted by the landlord.

17. We may notice that the majority of the Full Bench of theMadhya Pradesh High Court in a case in S.S. Harishchandra Jainand others v. Dr. Captain Indersingh Bedi11, took the view that Section13 applied only to Suits. It was further held that the words, “otherproceedings”, in the opening part of Section 13, is without meaning inboth sub-Sections (1) and (2) of Section 13. It was further held that theobject of Section 13 is to put a check on the unscrupulous tenant whowould protract litigation without payment of rent. It was further heldthat in the tenant’s appeal, application of Section 13 was unnecessarybecause the landlord could execute the Decree and recover rent and ifa stay was sought, condition of payment of rent could be imposed. Thisview came to be reiterated by a 7-Judges Bench in AIR 1978 MP 143and the Court held as follows:

“17. We answer the question referred to us in the negative.Agreeing with the dicta in Harishchandra v. Indersingh, 1977MPLJ 417 : (AIR 1977 Madh Pra 199 (FB)), we hold that Section13 of the M.P. Accommodation Control Act, 1961, does not apply, A

B

C

D

E

F

G

H

Aand no part of that section applies, to an appeal (whether theappeal be by the tenant or by the landlord) and that the law wascorrectly laid down in Harishchandra’s case and it continues tobe so because their Lordships’ decision in Radha Kishan v. GopalModi, (1977) 2 SCC 656 : AIR 1977 SC 1217 is clearlydistinguishable, the provisions of the Bihar Act being differentBfrom those of the Madhya Pradesh Act. Further, we say withrespectthat Ratanchand v. Rajendra Kumar (AIR 1970 MadhPra 1 (FB)) (supra) did not lay down law correctly when it heldthat S. 13 applies to an appeal also.”

18. It is apparently, in the light of this view, which came to beCpronounced on 14.01.1978, that the Legislature stepped in and substitutedSection 13 by Act 27 of 1983.

19. Let us first analyse the impact of Section 13, as it stood priorto its substitution in the year 1983. Section 12(1)(a) confers a right uponthe landlord to seek eviction on the ground of the tenant falling intoDarrears of rent and remaining in arrears even after service of a notice ofa demand. The default should persist for two months from the service ofdemand. 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 causeof action for seeking eviction. However, Section 12(3) provided andEcontinues to provide that no Order for theEviction of a tenant shall bemade on the ground under Section 12(1)(a), if the tenant makes paymentor deposit, as contemplated in Section 13. The proviso to Section 13,however, tabooed and continues to prohibit the invocation of the protectionunder Section 12(3) read with Section 13, more than once, in respect ofany accommodation. The tenant, in other words,stands shielded fromFeviction despite the availability of the ground under Section 12(1)(a),leading to an Eviction proceeding being filed. But, in respect of the sameaccommodation, in respect of which, the default took place, the tenantdoes not get insulated from eviction, if he defaults in payment of rent forthe same accommodation for three consecutive months. This was theGprotection, which was actually contemplated under Section 13, prior toSection 13 being substituted in the year 1983. Till 1983, thus, the protectioncould not be availed by any tenant on the ground of payment of rent byhim during the proceeding for eviction or Appeal.

20. After Section 13 was substituted in 1983, the legislative intentHmarks a shift. The tenant is obliged not only when a Suit or other proceeding is filed by the landlord to deposit the amount in terms ofSection 13, but he is compelled by law, even after an Order of Evictionhas been passed against him and when he challenges the Decree orOrder for Eviction by way of an Appeal or other proceeding, to depositwithin one month of the institution of the Appeal or other proceedingtheamount equal to the rent. He may also, on an application made to thecourt, deposit the amount or pay within such further time, as the courtmay allow. The amount, to be paid by the tenant, is to be calculated atthe 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 Section13 “for the period for which the tenant may have made default”. Itis here that the debate sharpens.The respondent-landlord wouldemphasise that the Law-Giver has only intended that the protection fromeviction, on the ground of arrears of rent, would be applicable in anAppeal or other proceeding by the tenant against the Decree or Orderfor eviction on such ground. In other words, the interpretation, placed bythe respondent, can be summed-up as follows. In a case, where there isa Suit filed by the landlord for eviction, invoking Section 12(1)(a), allegingthat the tenant has fallen in arrears of rent and an Order of Eviction ispassed, then, if a tenant were to appeal or file any other proceeding, insuch 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 makepayment for the period of default, which led to the proceeding, but hemust continue to pay or make deposit for the period subsequent theretoupto the end of the month previous to that in which the deposit or paymentis made. The third limb also must be complied with by the tenant in anAppeal or other proceeding by him against the Decree or Order ofEviction, which is that during the pendency of the Appeal or otherproceeding by him, he must continue to deposit or pay month-by-month,by the 15[th] 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 theAppeal or proceeding.

22. At this juncture, we may notice one of the salient features ofthe Act. Section 11A provides that Chapter III, in which Sections 12 and13 appear, shall not apply to matters provided, especially in Chapter IIIAto a landlord defined in Section 23J. Section 23J defines “landlord”, forthe purpose of Chapter IIIA, as retired Government Servant, widow, adivorced wife and physically handicapped person, interalia. The AB

C

D

E

F

G

H

Aproceeding is instituted under Chapter IIIA before the Rent ControllingAuthority (hereinafter referred to as, ‘the Authority’). The grounds foreviction under Chapter IIIA are bonafide need for the residential andnon-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 SectionB23C. He must obtain leave to contest. Section 23D provides for theprocedure to be followed by the Authority to grant leave. Section 23Edeclares that no Appeal shall lie from any Order passed by the Authority.However, Section 23E(2) clothes the High Court with revisionaljurisdiction both suo motu or an application by an aggrieved person.CSection 23F provides that the stay of operation of the Order of Evictionby the Authority or the High Court, shall not enure for a total period ofmore than six months. Section 23H is relevant and it reads as follows.

“Section 23H. Deposit of rent pending proceedings for eviction orfor revision. - The provisions of Section 13 shall apply mutatisDmutandis in respect of an application for recovery of possessionof accommodation under Section 23-A and in respect ofproceeding for revision under Section 23-E against final order bythe Rent Controlling Authority under Section 23-C or under Section23-D as they apply to a suit or proceeding instituted on any of thegrounds referred to in Section 12:EProvided that no suit or proceeding for eviction of the tenant ispending before any Court at any of its stages in relation to thesame accommodation.”

23. As far as the proceedings, covered by the landlord, not fallingFin Section 23J, but falling under Section 2(b), which defines the word“landlord” is concerned, the Act contemplates the Authority beingendowed with certain powers of a Civil Court under Section 29. AnAppeal is provided to the District Judge or the Additional District Judgefrom every Order of the Authority. Another feature of the Act is that aSecond Appeal lies under Section 32, on grounds, which may be describedGas being parimateria with Section 100 of the Code of Civil Procedure,1908 (hereinafter referred to as, ‘the CPC’, for short), as it stood priorto the amendment in the year 1977. The argument of the appellants isthat the word “decree”, used in Section 13, is best appropriated toproceedings before the Authority under Section 12, by way of the SuitHby 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 appositeto describe the decision rendered under Chapter IIIA. We must indicatethat Section 31, which provides for an Appeal to the District Judges orAdditional District Judge, speaks about an Appeal being maintainablefrom every ‘Order’ of the Authority.

24. However, it is apposite to notice that the Act was enacted inthe year 1961. Section 12(1), which provides for grounds of eviction oftenants, provides that no Suit shall be filed in any Civil Court against thetenant for his eviction except on any of the grounds mentioned thereafter.Thus, it is not, as if, a Suit 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 anOfficer not below the rank of Deputy Collector, to be the Rent ControllingAuthority for the area in his jurisdiction. As already noticed, the saidAuthority was to have the same powers, as vested in a Civil Court, inregard to certain matters. Therefore, in an area, where there is no suchAuthority notified under Section 28, the Law-Giver contemplated a Suitbefore the Civil Court. It is in this context, apparently, that the law providedthat Section 13 contemplates Decree being passed for eviction andprotection under Section 13 being extended in an Appeal from suchDecree. In fact, in the cases before us, the proceedings are suits, appealsunder 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, isthat, vide Section 23H, Section 13 has been made applicable ‘mutatismutandis’. Section 23H makes Section 13 applicable, not only in anapplication for recovery of possession under Section 23A, but it also ismade applicable in respect of a proceeding for Revision under Section23E against a Final Order by the Authority under Section 23C and Section23D, as they apply to a proceeding instituted under Section 12. It mustbe noticed that Chapter IIIA was inserted vide the very same amendment(Act 27 of 1983), which also resulted in Section 13 being substituted. Inother words, Section 13, as substituted, was intended to apply mutatismutandis, undoubtedly, to a Revision maintained against a Final Orderunder Section 23C or Section 23D. Section 23C contemplates an Orderof Eviction, being passed against the tenant, if the conditions in the saidprovision are satisfied. Section 23F also contemplates a stay being granted A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Aby the High Court in a Revision under Section 23E of the Order ofEviction. Therefore, when Section 13 is made applicable to a Revisionfiled against an Order of Eviction under Section 23C, the Revision wouldbe a Revision filed by the tenant, who has suffered an Order of Evictionunder Section 23C. What is, however, more important is that, under thescheme of Chapter IIIA, that is the fast-track procedure, as it were,Bcontemplated for the special categories of landlords falling under Section23J, it provides only for bonafide requirement as the ground for seekingeviction. If eviction is sought, in other words, on the ground of arrears ofrent, it may be open to the landlord to invoke the provisions of Section12. The special right, however, to invoke the shorter and faster route toCobtain an Order of Eviction, is available to the landlord, falling underSection 23J, only in respect of grounds of bonafide requirement. Therelevance of this lies in concluding that, by the insertion of Chapter IIIAalong 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 tenantDchallenges such an Order of Eviction by a Revision, he is expected topay the amount, as provided in Section 13(1), during the pendency of theRevision.

26. No doubt, in a proceeding under Chapter IIIA, the Law-Giverhas limited the operation of a Stay Order of Eviction to the total periodEof six months.

27. As already noticed, as far as a proceeding contemplated underChapter III by the ordinary landlord is concerned, if we may use thatexpression, falling under Section 2(b),Section 13, as such, applies. Wehave only attempted to divine the impact of Section 23H, to find that,Feven in a proceeding by the special category of landlords, falling underSection 23J, and what is more, where eviction cannot be sought underChapter IIIA, on the ground of arrears of rent, Section 13 applies evenafter the passing of the Order for Eviction, when the matter is pending ina Revision. This aspect helps to reveal the mind of the Legislature, andGthe 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 proceedingunder Section 12(1)(a), viz., a petition seeking eviction on the ground ofarears of rent, the Act protects the tenant by permitting him to depositHthe amount in arrears, which constitutes a ground for seeking eviction, in

the first place, in the manner provided in Section 13. As explained by thisCourt inSobhagyamal (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 Section12(3). Undoubtedly, in order that Section 12(3) apply, not only must thetenant pay the amount in arears, which is the basis for the applicationunder Section 12(1)(a), but he must continue to pay the amounts, whichare further mentioned in Section 13. Section 13(5), no doubt, again mustbe read along with Section 12(3). Section 13(5) interdicts the passing ofthe Decree or Order by the Court for recovery on the ground of defaultof payment of rent if compliance was made by the tenant of therequirement 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 inapplicablein the case where the ground of eviction is a ground other thanunder theone in Section 12(1)(a). In other words, Section 13(5) applies only in acase, where the landlord invokes default in payment of rent, as a groundfor eviction. The argument of the respondent-landlord, therefore, is thatthis circumstance, alongwith the use of the words, “for the period forwhich the tenant may have made default”, in Section 13, would indicatethat the protection from eviction, is not available unless the suit is madeunder Section 12(1)(a). To make it further clear, the argument is that theLegislature has articulated the intention to protect the tenant upon hispaying the amount under Section 13 only qua the tenant sued for evictionon the ground of arears of rent. The landlord further argues that Section13(6) indicates that, if there is failure on the part of the tenant to pay ordeposit the amount under Section 13, the Court is free to strike off thedefence and proceed with the hearing of the matter. Section 13(6) hasbeen interpreted by this Court, as noted by us earlier in ShyamcharanSharma(supra). As held by this court, the Court has a discretion tocondone the default in payment of rent and extend the time of paymentof rent. Section 13(6) does not compel the Court to order eviction of atenant, found in violation of Section 13. This view has also been followedinRam Murti(supra), as well.

29. The opening words of Section 13 provide that, on a Suit or anyother proceeding, being instituted by a landlord on any of the groundsreferred to in Section 12, the tenant is to deposit in Court or pay to thelandlord, the amount equal to the rent. Can it, therefore, be contendedthat the words “any of the grounds”, referred to in Section 12, is toapply only to a situation where Suit or any other proceeding is instituted AB

C

D

E

F

G

H

Aby the landlord? To expatiate, after the above opening words in Section13, by virtue of the substitution effected by Act 27 of 1983, can it meanthat the words “or in an Appeal or in any other proceeding by atenant against any Decree or Order for his eviction”, is not to beread along with “on of the grounds referred to in Section 12”? To putit in a different manner, can it be said that the substituted provisions ofBSection 13 contemplated that the Appeal or any other proceeding by thetenant, must be in a proceeding instituted only under Section 12(1)(a),i.e., on the ground of arrears of rent, for the reason that the constructionof the provision, which consists of an elongated sentence to whichmeaning cannot be attached, except by bearing in mind the statutoryCduty of the tenant to deposit the amount for the period for which thetenant may have made default. In other words, if the words “for theperiod for which the tenant may have made default” is anindispensable requirement to apply Section 13, then the substitutedprovisions, extending the protection in an Appeal or other proceeding bya tenant, would be confined to a proceeding under Section 12(1)(a). InDthis regard, we may also look for any inkling available in Section 13 forthe proposition that Section 13 is attracted in an Appeal or otherproceeding by the tenant, on any of the grounds under Section 12. In thisregard, in Sobhagyamal(supra), this Court, we may recapitulate, hasheld as follows:E“Striking out the defence of the tenant, on an applicationmoved by the landlord, the provision applicable in the Suit forejectment 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 instated forFejectment 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 theground of eviction is not one under Section 12(1)(a).

30. As we have already found, the words “Appeal or proceeding,Gas the case may be”, were inserted in sub-Section (6) of Section 13 byAct 27 of 1983. This was in keeping with the substitution effected inSection 13(1), whereby the words “or in any Appeal or any otherproceeding by a tenant, against any Decree or Order for hiseviction”, also came to be added. Therefore, the legislative history tendsto indicate that Sections 13(1) and 13(2) are to apply in any Appeal orH

other proceeding against the Order or Decree of Eviction on any of thegrounds under Section 12.

31. Act 27 of 1983, inserted the words “or in any Appeal or anyother proceeding by a tenant against any Decree or Order for hiseviction”. The word “any” is intended to convey a wide meaning. TheDecree of Eviction may be a Decree passed on any of the grounds. Itneed not be confined to a Decree passed under Section 12(1)(a). This isalso to be understood in the context of the words “on any of the groundsreferred to in Section 12”, being used, preceded by the words in a Suitor other proceeding instituted by the landlord.

32. The problem persists in the form of the logical culmination ofthe command to the tenant in an Appeal or other proceeding, against anyDecree of Eviction, to deposit the rent or pay for the period, for whichthe tenant may have made default. Undoubtedly, in the context of Section12(1)(a) read with Section 12(3), the words “for the period for whichthe tenant may have made default”, is perfectly apposite. In otherwords, when Section 12(3) provides that no Decree shall be passed foreviction under Section 12(1)(a), if the tenant makes the deposit orpayment of the amount of rent, under Section 13, it is intended to meanthat, even if the tenant has invited the wrath of Section 12(1)(a), hewould be protected under Section 12(3), if he complied with Section 13,made the deposit within a period of one month or the extended period ofthe service of summons and made further deposits/payment.

33. However, Section 13 clearly is intended to apply in a Suit orproceeding instituted by the landlord on any other grounds under Section12. If that be so, the words, “for the period, for which, the tenant mayhave made default”, may not apply, as the tenant may not be in defaultand no ground under Section 12(1)(a) may even be pleaded. Therefore,in such a proceeding by the landlord, the words, “for the period, forwhich, the tenant may have made default”, pales into insignificanceand irrelevance. It would then mean that, in a proceeding under Section12, which does not involve Section 12(1)a), or in other words, whenthere is no default within the meaning of Section 12(1)(a), the protectionwould be available to the tenant, only if, he makes a deposit or paymentfor the period during the pendency of the proceeding. In other words,throughout the proceeding by the landlord, on any of the grounds underSection 12, the tenant is obliged to deposit the amount of rent. The failureto do so, would attract Section 13(6) and it is open to the Court to strikeoff the defence and proceed further in the matter.

A

B

C

D

E

F

G

H

A34. If that be so, in an Appeal or any other proceeding by thetenant against an Order of Eviction, which does not involve Section12(1)(a), the intention of the Law-Giver appears to be that the tenant, sodescribed, 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 rentunder Section 13(1) or Section 13(2), as the case may be, in the mannerBprovided, till the termination of the Appeal or proceeding.

A

35. We may profitably appreciate the problem through the prismof Section 23H, which we have already adverted to. Section 23H wasalso inserted by Act 27 of 1983. Thereunder, the provisions of Section13 is to apply mutatis mutandis, inter alia, in respect of a proceedingCfor Revision under Section 23E, against an Order of Eviction under Section23C, as they apply to a Suit or a proceeding instituted on any of thegrounds referred to in Section 12. The words “mutatis mutandis”, is awell-known legislative device, employed for the purpose of adaptationof a law in an altered context. We may only refer to the followingDexposition in the Judgment of this Court Reported in Ashok ServiceCentre 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 pointsof detail’. Black’s Law Dictionary (Revised 4th Edn., 1968)Edefines ‘mutatis mutandis’ as “with the necessary changes in pointsof detail, meaning that matters or things are generally the same,but to be altered when necessary, as to names, offices, and thelike. Housman v. Waterhouse [191 App Div 850 : 182 NYS 249,251] . In Bouvier’s Law Dictionary (3rd Revision, Vol. II), theexpression ‘mutatis mutandis’ is defined as “[T]he necessaryFchanges. This is a phrase of frequent practical occurrence, meaningthat matters or things are generally the same, but to be alteredwhen necessary, as to names, offices, and the like”. Extension ofan earlier Act ‘mutatis mutandis’ to a later Act brings in the ideaof adaptation, but so far only as it is necessary for the purpose,Gmaking a change without altering the essential nature of the thingchanged, subject of course to express provisions made in the laterAct. …”

36. It must be remembered that Section 13 contemplatesproceedings under Section 12 and on any grounds thereunder. The impactH12 (1983) 2 SCC 82

of Section 23H, applying Section 13 mutatis mutandis, is that, sinceSection 12 is inapplicable in a proceeding under Section 23A, whereinthe grounds are only of bonafide requirement, as provided therein, Section13, in its application under Section 23H, would mean that the proceedingby 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 tenantagainst an Order under Section 23C, the ground of eviction, can only bethe ground under Section 23A. In other words, in its application to aproceeding under Chapter IIIA, in a Revision by the tenant against anOrder of Eviction, Section 13 is intended to apply, even though, evictionis not based on the ground under Section 12(1)(a). This is for the reasonthat there cannot be an Order passed under Section 23A on the groundunder Section 12(1)(a), as the same is inapplicable. Thus, in such aRevision by a tenant against an Order under Section 23C, the presenceof the words in Section 13, “for the period for which the tenant mayhave made default”, would not become an insuperable obstacle. In otherwords, in such a Revision, the law obliges the tenant to pay the rent forthe period, which may include the period, into which, he may have fallenin 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 Section13 is intended to apply, even in a proceeding under Chapter IIIA, havingregard to the wide words used in the newly substituted avatar of Section 13, viz., “any Appeal or other proceeding by the tenant against anydecree”, the word “any” should be read harmoniously with any of thegrounds referred to in Section 12, appearing earlier in Section 13. Thus,even in an Appeal or other proceeding, Section 13 would apply, despitethere being no ground for eviction under Section 12(1)(a). The law wasso enacted by substitution in 1983, so that during any litigation launchedby the tenant against any Order of Eviction, the landlord is assured ofthe amount which is calculated at the rate of rent at which it was beingpaid. Section 13(2) takes care of the situation where there is a disputerelating to the amount of rent.

38. We must notice that the Act also does contemplate the fixationof standard rent. Section 7 deals with standard rent. It contemplates anincreased standard rent in case of a non-residential accommodation.Section 8 provides for lawful increase of standard rent in certain othercases. No doubt the respondent would point out that after an order ordecree of eviction is passed no application may lie. Even accepting the A

B

C

D

E

F

G

H

Asame, nothing stands in the way of the rent being increased till then.Therefore, the Act, as a whole, contemplated payment of rent in themanner provided in the Act.If he fails to deposit the amount, the Appealor proceeding launched by the tenant, would be imperilled and an adversedecision, resulting in eviction, could follow, unless the Court extendedthe time for payment of rent.B

39. Section 13(1) of the Act is a unique provision, the parallel ofwhich in any other State Law, has not been pressed into service beforeus by the respondent. Section 15 of the Delhi Rent Control Act, 1958,pressed before us, does not bear resemblance to Section 13(1)of theMadhya Pradesh Act, after the substitution took place in the year 1983.C

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. AnOrder of Eviction was passed on the ground of illegal sub-letting. In theDAppeal by the tenant, the Tribunal stayed the eviction subject to thetenant depositing Rs.15,000/- per month, in addition to the contractualrent. This direction was set aside by the High Court. This Court tooknote of the definition of the word “tenant” that it did not include theperson against whom an Order or Decree of Eviction has been made. Inthis regard, we may notice that the definition of the word “tenant” inESection 2(i) of the Act, under which, the Appeals arise before us, alsoprovides 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 in clause (l) of Section 2. Tenant includesF“any person continuing in possession after the termination of histenancy” [Section 2(l)(ii)] and does not include “any person againstwhom an order or decree for eviction has been made” [Section2(l)(A)]. This definition is identical with the definition of tenantdealt with by this Court in Chander Kali Bai case [(1977) 4 SCCG402] . The respondent tenant herein having suffered an order foreviction on 19-3-2001, his tenancy would be deemed to have cometo an end with effect from that date and he shall become anunauthorised occupant. It would not make any difference if theorder of eviction has been put in issue in appeal or revision and is confirmed by the superior forum at a latter date. The date oftermination of tenancy would not be postponed by reference tothe doctrine of merger.

18. That apart, it is to be noted that the appellate court whileexercising jurisdiction under Order 41 Rule 5 of the Code didhave power to put the appellant tenant on terms. The tenant havingsuffered an order for eviction must comply and vacate thepremises. His right of appeal is statutory but his prayer for grantof stay is dealt with in exercise of equitable discretionary jurisdictionof the appellate court. While ordering stay the appellate court hasto be alive to the fact that it is depriving the successful landlord ofthe fruits of the decree and is postponing the execution of theorder for eviction. There is every justification for the appellatecourt to put the appellant tenant on terms and direct the appellantto compensate the landlord by payment of a reasonable amountwhich 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 possessionhas been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the court topass appropriate orders so that reasonable mesne profits whichmay be equivalent to the market rent is paid by a person who isholding over the property.

19. To sum up, our conclusions are:

(1) While passing an order of stay under Rule 5 ofOrder 41 of the Code of Civil Procedure, 1908, the appellatecourt does have jurisdiction to put the applicant on suchreasonable terms as would in its opinion reasonablycompensate the decree-holder for loss occasioned by delayin execution of decree by the grant of stay order, in theevent of the appeal being dismissed and insofar as thoseproceedings are concerned. Such terms, needless to say,shall be reasonable.

(2) In case of premises governed by the provisionsof the Delhi Rent Control Act, 1958, in view of the definitionof tenant contained in clause (l) of Section 2 of the Act, thetenancy does not stand terminated merely by its termination AB

C

D

E

F

G

H

Aunder the general law; it terminates with the passing of thedecree for eviction. With effect from that date, the tenantis liable to pay mesne profits or compensation for use andoccupation of the premises at the same rate at which thelandlord would have been able to let out the premises andearn rent if the tenant would have vacated the premises.BThe landlord is not bound by the contractual rate of renteffective for the period preceding the date of the decree.

A

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

41. This Judgment has been followed by this Court in State ofMaharashtra and another v. Super Max International PrivateLimited and others14. The case arose under the Bombay Rent Act. Infact, in the said case, the definition in Section 5(11) of the Bombay ActDwas not parimateria with the definition in the Delhi Rent Control Actand the Act in question. After an exhaustive survey of the case law,which included Atma Ram Properties(supra) and Satyawati Sharma(D) by Lrs.v. Union of India and another15, this court held as follows:

“73. In an appeal or revision, stay of execution of theEdecree(s) passed by the court(s) below cannot be asked for as ofright. While admitting the appeal or revision, it is perfectly open tothe court, to decline to grant any stay or to grant stay subject tosome reasonable condition. In case stay is not granted or in casethe order of stay remains inoperative for failure to satisfy theFcondition subject to which it is granted, the tenant in revision willnot have the protection of any of the provisions under the RentAct relied upon by Mr Lalit and in all likelihood would be evictedbefore the revision is finally decided. In the event the revision isallowed later on, the tenant’s remedy would be only by way ofrestitution.G

xxxxxxxxx

77. In the light of the discussions made above we hold thatin an appeal or revision preferred by a tenant against an order or 14 (2009) 9 SCC 772H15 (2008) 5 SCC 287

decree of an eviction passed under the Rent Act it is open to theappellate or the Revisional Court to stay the execution of the orderor the decree on terms, including a direction to pay monthly rentat a rate higher than the contractual rent. Needless to say that infixing the amount subject to payment of which the execution ofthe order/decree is stayed, the Court would exercise restraint andwould not fix any excessive, fanciful or punitive amount.

42. Therefore, the question would finally arise that in a SecondAppeal, filed by the tenant, against whom an Order/Decree of Evictionis passed, on a ground, other than under Section 12(1)(a), even after thetenant complies with the requirement of Section 13 and deposits therent, as was being paid, whether the Appellate Court, when approachedby the appellants-tenants, seeking a stay of the execution of the Decreeunder Order XLI Rule 5 of the Code of Civil Procedure, 1908 (hereinafterreferred to as, ‘the Code’, for short), they could be asked to deposit anamount representing a reasonable market value of the rent. Undoubtedly,in the Act, the definition of the word “tenant”, does not include a personagainst whom an Order or Decree of Eviction has been passed. In thesaid sense, the Act can be treated as similar to the Delhi Rent ControlAct. 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 tenant.He would become an unauthorised occupant in the words of this CourtinAtma Ram Properties (supra). The principle inAtma Ram Properties(supra), therefore, would apply unless Section 13 poses an obstacle inthe path of the Appellate Court directing the payment of the mesneprofits by the appellants as a condition of stay of execution.

43. In this case, undoubtedly, appellants have invoked Order XLIRule 5 of the CPC. It is in the said Application that the High Court hasgranted a stay, subject to the condition of payment of amount in a sum ofRs.18,000/- per month. The landlady filed an application seeking depositof the rent which led to the stay being conditioned. This amount hasbeen arrived at on the basis of the Report submitted by the Authority.Undoubtedly, the tenancy relates back to the year 1975. The rentcanvassed by the appellants is Rs.872/- per month and Rs. 622/- permonth.

44. In Section 13 of the Act the law giver has given a sectionheading ‘when a tenant can get benefit of protection against eviction’. Itis thereafter that the provisions are enacted. Sub section 5 of Section 13

AB

C

D

E

F

G

H

Arelates only to a suit in which the ground of eviction is default of paymentof rent. As far as Section 13 (6) is concerned it deals with a situationwhere the tenant fails to deposit or pay the amount under Section 13 ofthe Act. Prior to Section 13 being substituted in the year 1983 itcontemplated that the court may strike out the defence against evictionand proceed with the hearing of the suit. It was this provision which wasBinterpreted in Shyamcharan Sharma (supra) to mean that the court stillhas a discretion and is empowered to grant extension of time to pay rentunder Section 13. By virtue of the substitution in the year 1983 in Section13 (6) in view of the addition of the words ‘appeal or proceeding as thecase maybe’, on the failure of the tenant to deposit or pay the amount asCrequired by Section 13 the court is empowered to strike out the defenceagainst eviction is made applicable to an appeal or proceeding by thetenant. An appeal and proceeding can be disposed off which essentiallymeans that an Order of Eviction would ordinarily follow as the appeal orother proceeding by the tenant is against an Order of Eviction which isalready passed.D

45. Now, as far as a suit for eviction based on ground other thanSection 12(1)(a), viz., arrears of rent. Section 13 expressly does notprovide as to what is to happen if the tenant complies with requirementof Section 13 as distinct from the failure of the tenant to comply withSection 13. In this case we are concerned with the former namely whatEwould be the position if the tenant faithfully complies with the mandateof Section 13 and has deposited/ paid the amount. There is no expressintention 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 giveris provided in Chapter IIIA. We say this for the reason that Section 13Fhas been applicable mutatis mutandis by virtue of Section 23H as wehave already noticed. However, Section 23F provides as follows: - “Section 23F. Duration of stay. - The stay of the operation of theorder of eviction passed by a Rent Controlling Authority or by theHigh Court shall not ensure for a total period of more than sixGmonths.”

47. Therefore, this provision indicates that despite payment beingmade by the tenant of the amount in terms of Section 13 in a revisionfiled within the meaning of Section 23H an order of stay of eviction maystill be necessary. In other words, ipso facto, the mere payment of theHamount in terms of Section 13 would not shelter the tenant who has filed a revision referred to in Section 23H from being proceeded against inexecution of the decree. The law giver has contemplated an order ofstay being passed in Section 23F with the restraints regarding the durationof the stay order which has been declared therein.

48. Thus, the payment of the amount mentioned in Section 13 in aChapter III proceeding by itself may not result in a stay of the decree orOrder of Eviction.

49. The further question would however arise that in an appealfiled by the tenant against the decree or Order of Eviction whether on aproper construction of Section 13 of the Act, whether the AppellateCourt can impose any condition other than that of deposit of the amountwhich no doubt is the rent which was being paid. The other way to lookat it which is what the landlady wants us to do is to import in the principleenunciated in Atma Ram Properties (supra).

50. We have already noticed the decision rendered by a bench of5 learned Judges of the Madhya Pradesh High Court decided on17.02.1977 in S.S. Harischandra Jain and others(supra),at a point oftime when Section 13 was in its erstwhile form. The Court held,interalia, as follows:

“(ix) In tenant’s appeal, application of Section 13 is unnecessarybecause 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 appealfrom dismissal on other ground, there is no special equity in hisfavour. In case of non-payment of rent his ordinary remedy of asuit for recovery of rent is available to him.

(xi) Section 13 is not a machinery for realisation of rent as analternative to a, suit for recovery of rent. The object of Section 13is to put a check on the unscrupulous tenant who would protractlitigation without payment of rent. That purpose is served in thesuit. But the enquiry is reversed when the suit is dismissed.”

51. This view, as again noted,has been approved by the still largerbench of the High Court reported in AIR 1978 MP 143. Apparently, A

B

C

D

EF

G

H

Athese judgements led to the substitution of Section 13 in the year 1983 byway of the legislative intervention and in an appeal or other proceedingby the tenant against the decree or Order of Eviction the duty to payrent came to be imported. Bearing in mind this legislative history whichcan be said to be in recognition of exposition of law by the High Court,could it be said that the legislature contemplated the Appellate CourtBgranting stay of the decree of eviction subject only to the condition thatthe amount which represented the rent which was being paid is paid asa condition.

52. As we have seen, the actual protection which is granted underSection 13 of the Act, is what is provided in Section 13(6), in the cases atChand.

53. Does Section 13 have the effect of operating as a stay of theDecree for Eviction in its own right? The principal contention of theappellants is that the principle inAtma Ram (supra) that upon an Orderof Eviction being passed, the erstwhile tenant ceases to be a tenant andDhis possession becomes wrongful and, therefore, he can be called uponto deposit mesne profit, would not apply, having regard to the contents ofSection 13 of the Act. This is for the reason that contrary to the definitionof the word ‘tenant’ in Section 2(i), Section 13 reintroduces the conceptof ‘tenant’, even after the Order of Eviction is passed and when theEerstwhile tenant seeks to maintain an appeal or other proceeding againstthe Decree or Order of Eviction. He is called upon, furthermore, todeposit the agreed rent. Once he is called upon to deposit the agreedrent and he is treated as a tenant by the Law Giver, by virtue of theunique provisions contained in Section 13(1) of the Act, the principle inAtma Ram(supra) would, therefore, not apply. In other words, despiteFdefinition of ‘tenant’ in Section 2(i) of the Act, excluding a person againstwhom an Order of Eviction has been passed, he does not stand in theshoes 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 itGwas paid”. The further expressions used are”a sum equivalent to rentat that rate”. These expressions are used to denote the amount payableby the person described as tenant, both before the Order of Eviction ispassed and after the Order of Eviction, during the pendency of appeal orproceeding, as the case may be. We are making this observation for thereason that if the words “an amount calculated at the rate, at which,H

it was paid or a sum equivalent to the rent”, is understood as describingthe amount, which is not the rent as such, but the amount, which, theperson was obliged to pay as a tenant, after the Order of Eviction ispassed, then, it could be said that, what is contemplated is that, the amountdirected to be paid, is treated as not the rent as such, but the amountequivalent to the amount or an amount calculated at the rate of rent.Such an amount, being payable, may be reconcilable with the Order ofEviction, putting an end to the tenancy and erstwhile tenant becoming aperson in illegal possession. But herein, we may notice that the sameexpression is used even for describing the amount payable during thependency of proceeding under Section 12. In other words, these wordsare applicable to describe the amount payable at all points of time,including the pendency of the suit, appeal or other proceedings. To makeit even more clear, both, at the stage when landlord-tenant relationshipexists and, at the stage, when following an Order of Eviction, going bythe definition of ‘tenant’ in Section 2 of the Act, the erstwhile tenantwould cease to be a tenant, the amount payable in Section 13 is describedin the similar manner. In fact, there is no case as such that the amountwhich 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 theappellants.

55. As far as the aspect about the former tenant, even after theOrder of Eviction being referred to as a tenant, even when he maintainsan appeal against a Decree/Order of Eviction is concerned, we wouldthink that it can be a legislative device to aptly describe the person inquestion devised by the Legislature. In this regard, the more importantquestion is, whether after the Order of Eviction is passed, the erstwhiletenant would remain a tenant in law. The tenant begins his inningsordinarily as a contractual tenant. In the case of a contractual tenant,upon the expiry of the lease, he is under the Transfer of Property Actand, in accordance with the contract, duty-bound to vacate the premisesand deliver possession to the landlord. Failure on his part to do so, wouldexpose him to an action for mesne profits, on the basis that his continuanceafter the period and contrary to the contract, would be wrongful. In thecase of a statutory tenant, which, undoubtedly, the tenant was, the mereexpiry of the contractual lease, does not result in the tenancy coming toan end under the laws relating to the statutory tenancy. It is with theOrder of Eviction, which is passed, that the erstwhile tenant ceases tobe the tenant. After the Order of Eviction is passed, the law deprives the ABC

D

E

F

G

H

ABC

D

E

F

G

H

Aerstwhile tenant of his status of tenancy. The definition of ‘tenant’,accordingly, in Section 2(i) of the Act, is a legislative recognition of thisposition. Now, the Act enables the filing of appeal or other proceedingby the erstwhile tenant. The law prescribes the period of limitation. Doesit mean that the possession of the erstwhile tenant or rather his occupationof the premises, after the Order of Eviction, is not wrongful? What willBbe the position, if he prefers an appeal, after a long delay and delay iscondoned? Can it be said that during the period delay, at any rate, thatthe erstwhile tenant sheds his character as illegal occupant? We wouldthink that with the passing of Decree or Order of Eviction, the erstwhiletenant, no longer, remains a tenant. He continues to occupy the premises,Cwhich, in law, is wrongful. Under the law, generally, continued occupationof 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, which in the case of statutorytenancy occurs with the passing of the Order of Eviction and, in theDcase of the contractual tenancy, upon the expiry of the lease,thepossession of the erstwhile tenant, indeed, becomes wrongful. The factthat the law permits the filing of an appeal or other proceeding, will notdetract from the aforesaid position.

56. This position is self-evident from the decision in Atma RamE(supra). The Judgment in Atma Ram (supra) makes it clear that theerstwhile statutory tenant would become an unauthorised occupant uponthe passing of the Order by the original Forum. This Court has furtherheld that fact that the Order of Eviction has been challenged in an appealor revision and it is confirmed at a later point, will not enable the erstwhileFtenant 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 Section13 of the Act, will become clear. We have already noticed that the actualprotection, which is provided in Section 13 of the Act, as far as the casesGwe are concerned with, is contained in Section 13(6) of the Act. Uponthe tenant, as described in Section 13, paying the amounts as providedtherein, the tenant is allowed to, inter alia, prosecute the appeal or otherproceeding. The failure to comply with Section 13, will result in theconsequences, which are provided therein. Since, we are concernedhere with the consequences of tenant acting in conformity of Section 13H

of the Act, apart from noticing, what we have already indicated, wewould examine, whether it has the effect, which is canvassed for by theappellants.

58. We are of the view that even though Section 13 does refer tothe erstwhile tenant as a tenant and it obliges him to deposit throughoutthe proceedings, the amounts, which can be treated as the rent beingpaid, which would be contractual rent or even the rent fixed as thestandard rent, this does not, by itself, alter the effect of the Decree/Order of Eviction passed by the Court, by which, he stood deprived ofthe status of a tenant. The filing of an appeal or other proceeding by thetenant, does not make the Decree inexecutable. The preferring of anappeal or other proceeding, would not bring about a stay of the proceedingsbased on the Decree or Order of Eviction. The payment of the amountsunder Section 13(1) or Section 13(2) of the Act, does not, by itself, bringabout the stay of the Decree or Order of Eviction. The net result is, theprinciple in law and, as recognised in Section 2(i) of the Act, and, asinterpreted in Atma Ram (supra), that with the passing of the Order ofEviction by the Court, the possession of erstwhile tenant, becomingwrongful, will apply. By making the payments, contemplated in Section13(1) or Section 13(2) of the Act, the erstwhile tenant, who stood deprivedof the status of a tenant, does not regain the said status by mere reasonof 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 definitionin Section 2(i) of the Act, will continue to hold the field, even after anappeal or other proceeding is maintained by him. Therefore, Section 13of 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 largerBench decisions of the High Court, which we have referred to, theLegislature wanted to ensure that even during the appeal filed by thetenant, 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, wouldnot be protected from being evicted in terms of the Decree/Order ofEviction during the pendency of the appeal or proceeding. It is open tothe appellant, inter alia, in challenging the Decree/Order of Eviction toseek stay of the Decree/Order of Eviction. It is then that the AppellateCourt can exercise its powers under Order XLI Rule 5 of the CPC.

AB

C

D

E

F

G

H

A60. We have found reinforcement in Section 23F of the Act fallingin Chapter IIIA, which also contemplates Orders of Stay being passed,even though Section 13 has been made applicable by virtue of Section23H. As regards the power of the Appellate Court, to grant a stay, it isclear that it is open to the Appellate Court, to impose such condition, asit thinks fit. It can issue directions, as held by this Court in SupermaxBInternational(supra). Once we proceed on the basis that with the Decreeof Eviction being passed, the erstwhile tenant becomes an unauthorisedoccupant and he makes himself liable to pay mesne profits for hiscontinued occupation, such an erstwhile tenant can, indeed, be calledupon to pay mesne profits. Undoubtedly, there is power with the AppellateCCourt, in this regard.

A

A

61. We have, no doubt, noticed the view taken by the larger Benchof the High Court (which, in fact, paved the way for the substitution ofSection 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 partDof the tenant to deposit the agreed rent, in an appeal filed by him, didobserve that in such a scenario, it will be open to the landlord to executethe Decree and if the tenant files an application under Order XLI Rule 5of the CPC, the tenant can be asked to deposit the rent. No doubt, thelegislative intervention in 1983 through substitution of Section 13, mayhave been inspired by the judicial exposition and, therefore, one of theEprinciples of interpretation being that the Legislature must be treated ashaving 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 Rule5, even after the substitution of Section 13, when the tenant is calledupon to deposit the agreed rent, then, even in the matter of imposingFcondition under Order XLI Rule 5, the tenant cannot be worse off thanwhen Section 13 was in its earlier avatar. In other words, with thedeposit of the agreed rent, there would be no occasion to deposit anyfurther amount, even under Order XLI Rule 5. We must, however, bearin mind the fact that the law, as has been declared inAtma Ram(supra), and as has been followed in Supermax International(supra), in theGmanner already referred to. That is, with the Decree of Eviction beingpassed, the erstwhile statutory tenant becomes an unauthorised occupant.The fact that the law permits the defendant to file an appeal or to takeother proceedings, will not clothe him with rights as a tenant. The factthat the finality of the Decree of Eviction is attained at a later stage, willHnot be sufficient to extricate him from his position as an unauthorised occupant in the interregnum. This has the inevitable consequence thatduring such interregnum, the erstwhile tenant, being in the position of anunauthorised occupant, he becomes liable to pay mesne profits. Oncethis position is clear, then, the necessary corollary is, even after thesubstitution of Section 13, it would be open to the Appellate Court toimpose the condition that appellant seeking to contest the Decree ofEviction, shall deposit a reasonable sum, which is not to be limited to theagreed rent. This position is also better understood in the light of theplight of the landlords, who are forced to wait for long, the realisation ofthe 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 excessof the agreed rent, in the light of the Decree of Eviction, as such, wasnot considered by the larger Bench of the High Court. At any rate, in thelight of the Judgments of this Court, there cannot be any dispute aboutthe principle that upon a Decree of Eviction being passed, the erstwhiletenant becomes an unauthorised occupant and remains one thereafterduring the entire proceedings. The fact that there is power to fix standardrent cannot affect this position. In fact, the respondent would point outthat after the eviction is ordered even the power to fix standard rentceases as the tenancy comes to an end.

62. It is undoubtedly true that the existence of power under OrderXLI Rule 5 of the CPC, is not to be confused with the exercise of itspower by an Appellate Court. That there is power with the AppellateCourt, may not enable it to Order any unreasonable amount or reach awindfall to the landlord. The power is to be exercised on a carefulconsideration of the facts of each case. It will include the quantum ofagreed rent, which the tenant is paying under Section 13 of the Act. Itwill consider whether the said sum is the result of any fixation of standardrent. If so, what is the point of time, at which, the agreed rent wasarrived at, the nature of the premises and all other relevant facts. It mayinclude a case where the Appellate Court, on a perusal of the impugnedJudgment, is convinced, prima facie, no doubt, that the Decree forEviction is palpably insupportable, in which case, it may grant a stay,without calling upon the tenant to pay any sum in excess of amount fixedin Section 13 of the Act.

63. We are unable to accept the appellants case that Section 13of the Act, being a special law, the power under Order XLI Rule 5,cannot be exercised to direct deposit or payment of mesne profits.

AB

C

D

E

F

G

H

ACompliance 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 AppellateCourt to impose conditions for staying the Decree, cannot be confinedby the dictate in Section 13 of the Act, to the appellants/tenants, to depositthe agreed rent, particularly, having regard to the time consumed inlitigation and, more importantly, the impact of the Decree of Eviction,Bdepriving the appellant of his status as a tenant.

64. The upshot of the above discussion is that we reject thecontention of the appellants that Section 13 of the Act will detract fromthe principle in Atma Ram (supra) and Supermax International(supra)being available to the cases under the Act.C

65. Coming to the facts, the rent being paid for 100 square feet ofnon-residential accommodation by one of the appellants is Rs.622/-, fixedin 1975. In the other case, the rent canvassed by the appellant, as beingthe 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 150Dsquare feet. There is no reference to the rent being fixed in proceedingsfor fixing the standard rent. The Suit was filed in the year 2009. TheDecree for Eviction was passed in the year 2013. The First AppellateCourt dismissed the appeal filed by the appellants on 25.03.2014. TheSecond Appeal was filed in the year 2014. The impugned Orders cameEto be passed on 17.03.2020 and 25.08.2021 at the stage of second appealwhen two courts have found against the appellants. The amount hasbeen fixed at Rs.18,000/- per month. The amount has been fixed on thebasis of the Report submitted by the Rent Controlling Authority, whowas asked to report regarding the market rate of the accommodation inquestion. The complaint of the appellant is that the Rent ControllingFAuthority has tendered its Report and, while doing so, adequateopportunitywas not provided and the materials placed were not considered and thatthe amount is unreasonable. It is said to be based only on the Panchnamaprepared by the Revenue Officer. The High Court has found that thepremises are located in a famous commercial place and the rent of Rs.847/G- per month was fixed in the year 1975.

66. We do not think that the appellants should be permitted tochallenge the quantum, once we have answered the legal issues flowingfrom Section 13, against the appellants. It would appear from the writtensubmission that the appellants have deposited certain sums in executionHof the orders. The appellants will be entitled to adjust the said amount in complying with the impugned orders. The amount of Rs.18000/- willsubsume the amount paid/payable under Section 13 of the Act.

A

67. We may, however, notice the following views expressed bythis Court in Supermax International(supra):

“79. Before concluding the decision one more question needs tobe addressed: what would be the position if the tenant’s appeal/revision is allowed and the eviction decree is set aside? In thatevent, naturally, the status quo ante would be restored and thetenant would be entitled to get back all the amounts that he wasmade to pay in excess of the contractual rent. That being theposition, the amount fixed by the court over and above thecontractual monthly rent, ordinarily, should not be directed to bepaid to the landlord during the pendency of the appeal/revision.The deposited amount, along with the accrued interest, shouldonly be paid after the final disposal to either side depending uponthe result of the case.

B

C

D

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

E

68. Thus, in the facts of this case, we would think that the directionto pay the entire amount, may require modification. Equally, we are ofthe view that some time must be granted to deposit the amount.

69. Accordingly, in modification of the impugned Orders, we orderas follows:

F

a.Appellants are granted five weeks to deposit the entireamount in terms of the impugned orders after adjusting theamounts already deposited/paid on the basis of the ordersof the execution court. The amounts will also subsume theGamounts paid/payable under Section 13 of the Act.

b.We further order that the respondent in the appeals shall bepermitted to withdraw the rent at the rate of Rs.10,000/-per month from the amount which is deposited; H

350SUPREME COURT REPORTS

Ac.The respondent shall be permitted to withdraw at the rateof Rs.10,000/- per month from the amount to be depositedby the appellants, on such terms to be fixed by the HighCourt;

70. Save as aforesaid, we affirm the impugned Orders. The appealsBare partly allowed as above. There will be no order as to costs.

Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeals partly allowed.

C

D

E

F

G

H