Civil Appeal No 854 of 1977
Appeal by Special Leave from the Judgment and order dated 2 8 1976 of the Madhya Pradesh High Court in SA No 44071
section section Khanduja and Lalit Kumar Gupta for the Appellant
T P Naik and section K Gambhir for the Respondent
The Judgment of the Court was delivered by CHINNAPPA REDDY J
The respondent landlord sought eviction of the appellant tenant from the suit premises an two grounds i failure to pay arrears of rent of Rs 15825 despite service of notice of demand and ii bonafide requirement of premises for landlord s personal occupation
The second ground was rejected by all the sub ordinate courts and we are no longer concerned with that ground
In regard to the first ground the trial Court found that the tenant was 336 in arrears of payment of rent but that the tenant was entitled to the Protection of section 123 of the Madhya Pradesh Accommodation Control Act 1961 as the tenant had deposited the arrears of rent within the time allowed by the Court on his application
When the appeal preferred by the landlord was pending before the Additional District Judge Satna the tenant filed an application for condonation of delay R in depositing the rent month by month which had become payable after the filing of the suit as stipulated by section 131 of the Act
It appears that on several occasions when the suit and the appeal were pending before the trial court and the appellate court respectively the tenant had deposited the monthly rent a day or two or three beyond the prescribed date
The amount had been received by the court and drawn out by the landlord apparently without any protest
Taking advantage of the filing of the tenant s application for condonation of delay the landlord contended that the court had no power to extend the time for deposit of the monthly rent and that he was entitled to a decree for eviction consequent on the non compliance with the provisions of section 13  1  of the Madhya Pradesh Accommodation Control Act
The appellate court negatived the landlord s contention and dismissed the appeal
The landlord preferred a Second Appeal to the High Court of Madhya Pradesh
The High Court holding that the court had no power to extend time decreed the suit for eviction
The tenant having obtained special leave has appealed to this Court
Shri Khanduja learned counsel for the appellant raised two contentions before us
The first contention was that the High Court was wrong in holding that the Court had no power to condone the delay in depositing the monthly rent falling due after the filing of the suit for eviction
The second contention was that in the circumstances of the case
the respondent must be considered to have waived or abandoned the right to insist on dis entitling the tenant of the protection to which he was otherwise entitled
Shri Naik learned counsel for the respondent contended to the contrary on both the questions
The Madhya Pradesh Accommodation Control Act 1961 was enacted as recited in the statement of objects and reasons for the purpose of controlling letting of and rents of residential and nonresidential accommodation and giving adequate protection to tenants of such accommodation in areas where there is dearth of accommodation
Section 121 of the Act provides that no suit shall be filed ill any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds specified therein
Several grounds are specified such as failure to pay the arrears of rent after the service of notice of demand unlawful sub letting of the whole or 337 part of the accommodation creation of a nuisance bonafide requirement of the accommodation by the landlord for his own occupation causing of substantial damage to the accommodation etc
The ground with which we are concerned is that mentioned in section 121 a and it is that the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner
Thus where a tenant is in arrears of rent a landlord is obliged before instituting a suit for eviction on that ground to serve a notice of demand calling upon the tenant to pay or tender the whole of the arrears of rent within two months of the date of service of the notice
section 123 provides that an order for the eviction of a tenant shall not be made on the ground specified in section 121 a if the tenant makes payment or deposit as required by section 13
section 13sub sections
1 5 and 6 which are relevant for the present purpose are as follows 13
1 on a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 12 the tenant shall within one month of the service of the writ of summons on him or within such further time as the Court may on an application made to it allow in this behalf deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate
xx xx xx xx xx 5 If a tenant makes deposit or payment as required by sub section 1 or sub section 2 no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant but the Court may allow such cost as it may deem fit to the landlord
6 If a tenant fails to deposit or pay any amount as required by this section the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit
 338 It is true that in order to entitle a tenant to claim the protection of section 123 the tenant has to make a payment or deposit as required by section 13 that is to say the arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court and should further deposit or pay every month by the 15th a sum equivalent to the rent
It does not however follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month subsequent to the filing of the suit for eviction will entitle the landlord straight away to a decree for eviction
The consequences of the deposit or payment and non payment or non deposit are prescribed by sub sections
5 and 6 of section 13
Since there is a statutory provision expressly prescribing the consequence of non deposit or non payment of the rent we must look to and be guided by that provision only to deter mine what shall follow
section 13 6 does not clothe the landlord with an automatic right to a decree for eviction nor does it visit the tenant with the penalty of a decree for eviction being straightaway passed against him
section 136 vests in the court the discretion to order the striking out of the defence against eviction
In other words the Court having regard to all the circumstances of the case may or may not strike out the defence
If section 13 were to be construed as mandatory and not as vesting a discretion in the Court it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by section 131 but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction
We think that section 13 quite clearly confers a discretion on the court to strike out or not to strike out the defence if default is made in deposit or payment of rent as required by section 131
If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by section 131 the court surely has the further discretion to condone the default and extend the time for payment or deposit
Such a discretion is a necessary implication of the discretion not to strike out the defence
Another construction may lead in some cases to a perversion of the object of the Act namely the adequate protection of the tenant 
section 123 entitles a tenant to claim protection against eviction on the ground specified in section 121 a if the tenant makes payment or deposit as required by section 13
On our construction of section 13 that the Court has the power to extend the time for payment or deposit it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection
of section 123
One of the arguments advanced before us was that there was no express provision for extension of time for deposit or payment
339 of monthly rent subsequent to the filing of the suit whereas there was such express provision for payment or deposit of arrears of rent that had accrued before the filing of the suit
Obviously express provision for extension of time for deposit or payment of rent falling due after the filing of the suit was not made in section 131 as the consequence of non payment was proposed to be dealt with by a separate sub section
namely section 136
Express provision had to be made for extension of time for deposit or payment of rent that had accrued prior to the filing of the suit since that would ordinarily be at a very early stage of the suit when a written statement might not be filed and there would
therefore be no question of striking out the defence and so there would be no question of section 136 covering the situation
In Jagdish Kapoor vs New Education Society a full bench of the Madhya Pradesh High Court held that section 136 of the Madhya Pradesh Accommodation Control Act did not make it obligatory for the court to strike out the defence but vested in the court a discretion to strike out or not to strike out the defence
Having so held the full bench stopped short of giving full effect to their conclusion by holding D that the Court could condone the default and refuse to strike out the defence but it could not give the benefit of section 123 or 135 to the tenant
We do not see any justification for adopting this narrow construction of sections 12 and 13
In our view the discretion given to the court under section 136 must be held to imply a discretion to condone the delay and extend the time in making deposit or payment under section 131
In B C Kame vs Nem Chand Jain a tenant had committed default both in payment of arrears as well as in payment of the monthly rent which became payable after the filing of the suit
This Court took the view that on an application made by the tenant time for deposit or payment could be extended
Though the observations made by the Court read as if they were made with reference to the default in payment
Of arrears a reference to the facts of the case as set out in the very judgment shows that there was default both in payment of the arrears of rent that had accrued before the filing of the suit and in payment of the monthly rent that fall due after the filing of the suit
We are accordingly of the opinion that the Court has the jurisdiction to extend time for deposit or payment of monthly rent falling due after the filing of the suit
In that view it is not necessary to express our opinion on the question of waiver or abandonment
The appeal is allowed with costs and the suit for eviction is dismissed
NVK Appeal allowed


Summary:
The respondent landlord sought eviction of the appellant tenant from the suit premises for failure to pay arrears of rent despite service of notice of demand
The trial court found that the tenant was in arrears o payment of rent but the tenant having deposited the arrears of rent within the time allowed by the court on his application the tenant was entitled to avail the protection of section 123 of the Madhya Pradesh Accommodation Control Act
and dismissed the suit for eviction
The landlord preferred an appeal and while the same was pending the tenant filed an application under section 131 of the Act for condonation of delay in depositing the rent month by month
which had become payable after the filing of the suit
On several occasions when the suit and the appeal were pending before the trial court and the appellate court respectively the tenant had deposited the monthly rent a day or two or three beyond the prescribed date and the same had been received by the court and drawn out by the landlord without any protest
The landlord taking advantage of the filing of the tenant s application for condonation of delay contended that the court had no power to extend the time for deposit of the monthly rent and that he was entitled to a decree for eviction consequent on the non compliance with the provisions of section 131 of the Act
The appellate court negatived this contention and dismissed the appeal
In the second appeal preferred by the landlord the High Court held that the Court had no power to extend time and decreed the Suit for eviction
In the tenant s appeal to this Court on the question whether the Court hal
the power to condone the delay in depositing the monthly rent falling due after the filling of the suit for eviction
 HELD 1
The court had the jurisdiction to extend time for deposit or payment of monthly rent falling due after the filing of the suit
338 G 2
In order to entitle a tenant to claim the protection of section 123
the tenant had to make payment or deposit as required by section 13
The arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may he allowed by the court and should further deposit or pay every month by the 15th
a sum equivalent to the rent
338 A B
335 3
Failure to pay or deposit a sum equivalent to the rent by the 15th of every month subsequent to the filing of the suit for eviction will not entitle the landlord straightaway to a decree for eviction
The consequences of the deposit or payment and non payment or non deposit are prescribed by subsection and 6 of section 13
338 B 4
A discretion is vested in the court under section 136 to order the striking out of the defence against eviction
338 D 5
If the court has the discretion not to strike out the defence or a tenant committing default in payment or deposit of rent as required by section 131 the court surely has the further discretion to condone the default and extend the time for payment or deposit
Such a discretion is a necessary implication of the discretion not to strike out the defence
Any other construction may lead to a perversion of the object of the Act
namely the adequate protection of the tenant  338 F G 6
Section 123 entitles a tenant to claim protection against eviction on the ground specified in section 121a if he makes payment or deposit as required by section 13
As the court has under section 13 the power to extent the time for payment or deposit payment or deposit within the extended time will entitle the tenant to claim the protection of section 123
338 H 1 7
Express provision for extension of time for deposit or payment or rent falling due after the filing of the suit was not made in section 131 as the consequence of non payment was dealt with by a separate sub section section 136
The discretion given to the court under section 136 must imply a discretion to condone the delay and extend the time in making deposit or payment under section 131
339A E Jagdish Kapoor vs New Education Society disapproved
B C Kame vs Nem Chand Jain AIR 1970 SC 981
referred to