HIGH COURT OF CHHATTISGARH AT BILASPUR Appellant Defendaiit 8.A,__ro_._6.QF20U Shabnaiii KariBi, aged 41 years, Widlow of late Shri Atakariin, R/o Tiwari Chawl, Jarhabhata, BUaspur, VBRSUS Respondent Plaintiff District Bilaspur (C.G.). Ram Kuinar @ Mahendra Kuniar Mishra, aged 49 years, Son of Shri Ramkrishna Mishra, R/o house No. 21, Vishnunagar, Jalashay Marg, near Mungeli Naka, Bflaspur, District Bilaspur (C.G.), Througti; Smt. Neera Mishra, wife of Shri Shailendra Kumar, Special power of attorney, Appellant Ramkumar @ Mahendra Kumai' Mishra. SECOND CIVIL APPEAL UNDER SECTIOM 100 OF THB CODE OF CH7ILPRQCEBURE. (SB ;Hon'ble Bfir. T.P.Sharma, J.) Present:- Mrs. Hamida Siddiqui, Advocate for the appellant Mr. Aviaash Mishra, Advocate for the respondent JTTDGniBNT (Passed on 18/11/2011) 1. By fhis second appeal under Section 100 of Civil Procedure Code, 1908 (in short the Code') appellant has challenged the legality and propriety of the judgment and decree dated 13/12/2010 passed by District Judge, Bilaspur (C.G.) in civil appeal No. 4A/2010 affirming the judgment and decree of eviction and means profit against appellant dated 4/12/2009 passed by 1st Ch/il Judge Class-1, Bilaspur iti civil suit No. 5A/2008. 2. Present second appeal has been admitted for consideration on the following substantial question oflaw:- SWhether both the Courts below were justified in passing a decree against the appellant under Section 12(1)(a) of the C.G. Accommodation Control Act, 1961 m the light of the fact that rate of rent was in dispute and the trial court has not fvced any provisioncd rent under Section 13(2) ofthe C.G. Accommodation ControlAct. 1961?" 3. For decision of aforesald substantial question of law, detail pleading ofthe partty are not required to be considered, 4. As per allegation made in plaint by respondent, rate of rent was Rs. 850/- per month but as per allegation made m written statement by appellant, rate of rent was Rs. 700/- per month. 5. Mrs. Hamida Siddiqiii, Advocate for fhe appellaiit and Mr. Avinash Mishra, Advocate for the respondent are heard. 6. Both the judgments impugned and record of both tlie Courts below perused. 7. Leamed counsel for ttie appellant submits that in case of any dispute relating to amount of rent, means rate of rent or arrears of rent payable to the landlord, flxation of reasonable and provisional rent is sine-quo-non for Court and ifreasonable and provisional rent is not tixed tiien no decree under Section 12 (1) (a) of the C.G. Accommodation Control Act, 1961 (in ^^^^ ^•^<^:.^w^. ^•^ ' 1';:1 ^'' tfe^.'' J A.:"i'ft / short "the Act") can be granted in temis of sub-section 5 of Section 13oftheAct 8. Leamed counsel for the appeUant furttier submits fhat dui'ing course of tixation of provisional rent, the provisions of sub- section 1 of Section 13 of the Act is arrested therefore, appellant was not under obligation to pay rent although^ he has paid adinitted rent ofRs. 700/- regularly. 9. Leamed counsel for the appellant placed reliance in the matter of Jivrambhai and anofcher v. Amarsingh1 in which High Court of Madhya Pmdesh has held that Section 13(2) of tirie Act provides a machinery for assuring tfie defendant fhe special right under Section 12(3) of the Act and it affords protection to the tenant from the consequences of Section 13(6) of fhe Act i.e. during pendency of dispute relating to amount of rent or rate of rent defence of tenant cannot be struck ofi". 10. Oii tlie otlier haiid, leamed counsel for the respondent opposed the second appeal and submits that virtually^ there was no dispute relating to rate of rent on the basis of documentary aiid oral admission of appellant, Court has arrived at a tmding that rate of rent was Rs. 850/- and not Rs. 700/-. Present appeUant has failed to pay raontlily rent aiid aiTeai's of rent regularly^ he was habitual defaulter fherefore, botii the Couils below have rightly decreed ftie suit. ^, '- AIR 1973 Madhya Pradesh 165 (V 60 C 39) -<7%.. .;-<^"-^';' ,.f ^.^-•r-^^ 11. Leamed counsel for the respondent placed reliarice iri ttne matter of Gangadevi wd/o Balmukund aad Others v. Rukn&anidevi wd/o Laxnxikumar2 in which High Court of M,P, has held that in case of regular default in payment of rent by tenant^ Court was justified to decree flie suit under Section 12(l)(a) of the Act and also held that where rate of rent is admitted and the quantum of rent is disputed then tenant is required to deposit rent at the admitted rate and to comply fhe second liiiib ofSection 13(1) offtie Act. 12. Leamed counsel for the respondent further placed reliaiice in the matter of Jamnalal and Others v. Radheshyam3 in which Supreme Court has held that in case of admitted rent arid dispute relating to arrears of rent, tenaiit is under obligation to pay the admitted rent in tei-ms of Section 13 of the Act and in tenns ofsecond liaib ofSection 13(1) offhe Act 13. While decreeing the suit 1st Civil Judge Class-1, Bilaspur has decided issue No. 1 as proved which is as foUows:- 1. wi yl^ciil^^ ^ ^ ^pffif ^NTF^ arar *^mrfW> ^*<hr T^ m^t ^ ^ar ^re ^*PT ^r f^Tqr 850/- ^q^ ^w^ d^ i3T[ sn? 14. Trial Couil gave detail fmding but there was dispute relating to rate of rent till passiug of judgnient and decree by the trial Court^ provisional reut as required under Section 13(2) of flie 2 2000(3) M.P.L.J. 606 3 (2000)48.c.c. 380 ••^ ^ ~r:^& i ^y,./ %';!sy" Act has not been fKed. As per sub-section 2 of Section 13 of the Act^ in case of aay dispute as to miiouiit ofrent payable by the tenant, Court is requii'ed to tlx provisional rent and if tenant raake deposits or pays as required by sub-section 1 or sub-section 2 of the Act (provisional rent) then decree or order would not be possible on the ground of default in payment of rent by fhe tenant. Sub-sections 2 & 5 of Section 13 of ftie Act reads as follows:- s 13. When teneint can get benefit of protection agcdnst eviction.-(l) ******* (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 aplea made either by landlord or tenant in that behalf which shall be taken at the earliest opportunity during such suit or proc^eding, Jvc a reasonable provisional rent in relation to the accommodation, to be deposited or paid in accordance with the proviswris of sub-section (1) and no Court shalL save for recisons to be recorded in writing, entertain any plea on this account at any subsecfuent stage. /_q)*^^A-^^*^ |^****^5fr* (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 accoininodation on the ground of default in '^.. ^' ^wF ^N^ the payment of rent by the tenant, but the Court may allow such cost as itmay deemfit to the landlord." 15. Admittedly, in fhe present case, provisional rent has not been fKed by the Com't. There was dispute relating to rate of rent and appellant has raised dispute in his written statement, in these circmnstances, in accordance with sub-section 2 of S'ection 13 of fhe Act, Court was required to fix a reasonable provisional rent and after fixation of such rent, tenaiit was under obUgation to pay rent and arrears in accordaiice with such proxdsional rent but in fhe present. case^ no provisional rent has been fD^ed. In absence of fixation of such provisional rent, it was not possible for appellant t.o comply the provisions of sub-section 1 of Section 13 of the Act for saving herself from evlction. 16. While dealing witti the question of applicability of provisions of Section 13(1) of fhe Act, in case of Anandilal v. Shi^ Dayal Pande^ in which High Court of Madhya Praclesh has held tiiat operation of sub-section 1 of Section 13 of ttie Act arrested till dispute under Section 13(2) ofthe Act is decided. 17. Combmed reading of SecUon 13(1), 13(2) a& 13(5) of the Act clearly shows that till fixaUon of provisional rent in case of any dispute relating to rent payable by the tenant, operation of sub- section 1 of Section 13 of fhe Act arrested till fixation of 1977 MPLJ 822 "-^.-.^ reasonable provisional rent aiid if it is not tlxed tUl llnal judgment then tenant cannot be compelled to pay rent as claimed by landlord or ui case of non-compliance. Decree in terms of Section 12 (1) (a) of the Act on the grouiid of arrears of rent cannot be legalfy possible. Both the Courts below have decreed the suit without tlxation of provisional rent, which was not legally possible and thereby committed an illegality. Consequently, substantial question of law formulated for decision of fhis second appeal is decided as negative. On the basis of decision on substantial question of law formulated for decision of second appeal, second appeal deserves to be atlowed and is hereby allowed. Judgment and decree for eviction granted under Section 12 (1) (a) of the C.G. Accommodation Control Act, 1961 is hereby set-aside. Respoudent is entitled for ttie rent paid by appellant. 18. Parties shatl bear cost ofappeal. 19. Advocate fee if certified as per schedule or to the extent of certificate which ever is less. 20. Decree be drawn up accordingty. Sd/- T.P. Sharma Judge 18/11/2011 11-