# HEERA TRADERS v. KAMLA JAIN

- **Citation:** [2022] 10 S.C.R. 291
- **Court:** Supreme Court of India
- **Decided:** 2022-02-22
- **Case number:** Civil Appeal Nos. 5996-5997 of 2021
- **Bench:** K. M Joseph, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/heera-traders-v-kamla-jain-35542
- **Pages:** 60

## Headnote

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 erstwhile
tenant as a tenant and it obliges him to deposit throughout the
proceedings, the amounts, which can be treated as the rent being
paid, which would be contractual rent or even the rent fixed as the
standard rent, this does not, by itself, alter the effect of the Decree/
Order of eviction passed by the Court, by which, he stood deprived
of the status of a tenant - Filing of an appeal or other proceeding
by the tenant, does not make the decree inexecutable - Payment of
the amounts u/s.13(1) or s.13(2), does not, by itself, bring about
the 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 stood
deprived of the status of a tenant, does not regain the said status by
mere 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 the
definition in s.2(i) of the Act, will continue to hold the field, even
after an appeal or other proceeding is maintained by him - Therefore,
s.13 despite the unique provision contained therein, does not affect
the position at law, which stands declared in Atma Ram case -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 to take other proceedings, will
not clothe him with rights as a tenant - The fact that the finality of
the Decree of Eviction is attained at a later stage, will not be
sufficient to extricate him from his position as an unauthorised
occupant in the interregnum -During such interregnum, the erstwhile
tenant, being in the position of an unauthorised occupant, becomes
liable to pay mesne profits - Even after the substitution of s.13, it
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would be open to the Appellate Court to impose the condition that
appellant seeking to contest the Decree of Eviction, shall deposit a
reasonable sum, which is not to be limited to the agreed rent- Code
of Civil Procedure, 1908 - Or.XLI, r.5.
Madhya Pradesh Accommodation Control Act, 1961 - s.13
(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 appellantstenants that s.13 of the Act, being a special law, the power under
Or. XLI r.5, cannot be exercised to direct deposit or payment of
mesne profits - Held: Not acceptable - Compliance with s.13 by the
appellants, does no amount to a stay of the Decree for Eviction -
The power of the Appellate Court to impose conditions for staying
the Decree, cannot be confined by the dictate in s.13 of the Act, to
the appellants/tenants, to deposit the agreed rent, particularly, having
regard to the time consumed in litigation and, more importantly, the
impact of the Decree of Eviction, depriving the appellant of his
status as a tenant.
Interpretation of Statutes - Heading of a section - Held: The
heading of a section cannot control the construction of the provision
itself - The provision, as it unfolds under the heading, must be given
the full meaning according to the principles of interpretation, which
the court is persuaded to apply - The only area where the heading
may be useful is when the provision is shrouded in ambiguity - The
heading may shed some light, however, faint it may be.
Partly allowing the appeals, the Court
HELD: 1.1 Let us first analyse the impact of Section 13, as
it stood prior to its substitution in the year 1983. Section 12(1)(a)
confers a right upon the landlord to seek eviction on the ground
of the tenant falling into arrears of rent and remaining in arrears
even after service of a notice of a demand. The default should
persist for two months from the service of de

## Text

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 [2022] 10 S.C.R. 291
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 erstwhile
tenant as a tenant and it obliges him to deposit throughout the
proceedings, the amounts, which can be treated as the rent being
paid, which would be contractual rent or even the rent fixed as the
standard rent, this does not, by itself, alter the effect of the Decree/
Order of eviction passed by the Court, by which, he stood deprived
of the status of a tenant - Filing of an appeal or other proceeding
by the tenant, does not make the decree inexecutable - Payment of
the amounts u/s.13(1) or s.13(2), does not, by itself, bring about
the 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 stood
deprived of the status of a tenant, does not regain the said status by
mere 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 the
definition in s.2(i) of the Act, will continue to hold the field, even
after an appeal or other proceeding is maintained by him - Therefore,
s.13 despite the unique provision contained therein, does not affect
the position at law, which stands declared in Atma Ram case -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 to take other proceedings, will
not clothe him with rights as a tenant - The fact that the finality of
the Decree of Eviction is attained at a later stage, will not be
sufficient to extricate him from his position as an unauthorised
occupant in the interregnum -During such interregnum, the erstwhile
tenant, being in the position of an unauthorised occupant, becomes
liable to pay mesne profits - Even after the substitution of s.13, it
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would be open to the Appellate Court to impose the condition that
appellant seeking to contest the Decree of Eviction, shall deposit a
reasonable sum, which is not to be limited to the agreed rent- Code
of Civil Procedure, 1908 - Or.XLI, r.5.
Madhya Pradesh Accommodation Control Act, 1961 - s.13
(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 appellantstenants that s.13 of the Act, being a special law, the power under
Or. XLI r.5, cannot be exercised to direct deposit or payment of
mesne profits - Held: Not acceptable - Compliance with s.13 by the
appellants, does no amount to a stay of the Decree for Eviction -
The power of the Appellate Court to impose conditions for staying
the Decree, cannot be confined by the dictate in s.13 of the Act, to
the appellants/tenants, to deposit the agreed rent, particularly, having
regard to the time consumed in litigation and, more importantly, the
impact of the Decree of Eviction, depriving the appellant of his
status as a tenant.
Interpretation of Statutes - Heading of a section - Held: The
heading of a section cannot control the construction of the provision
itself - The provision, as it unfolds under the heading, must be given
the full meaning according to the principles of interpretation, which
the court is persuaded to apply - The only area where the heading
may be useful is when the provision is shrouded in ambiguity - The
heading may shed some light, however, faint it may be.
Partly allowing the appeals, the Court
HELD: 1.1 Let us first analyse the impact of Section 13, as
it stood prior to its substitution in the year 1983. Section 12(1)(a)
confers a right upon the landlord to seek eviction on the ground
of the tenant falling into arrears of rent and remaining in arrears
even after service of a notice of a demand. The default should
persist for two months from the service of demand. 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 cause of action
for seeking eviction. However, Section 12(3) provided and
continues to provide that no Order for the Eviction of a tenant
shall be made on the ground under Section 12(1)(a), if the tenant
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makes payment or deposit, as contemplated in Section 13. The
proviso to Section 13, however, tabooed and continues to prohibit
the invocation of the protection under Section 12(3) read with
Section 13, more than once, in respect of any accommodation.
The tenant, in other words, stands shielded from eviction despite
the availability of the ground under Section 12(1)(a), leading to
an Eviction proceeding being filed. But, in respect of the same
accommodation, in respect of which, the default took place, the
tenant does not get insulated from eviction, if he defaults in
payment of rent for the same accommodation for three
consecutive months. This was the protection, which was actually
contemplated under Section 13, prior to Section 13 being
substituted in the year 1983. Till 1983, thus, the protection could
not be availed by any tenant on the ground of payment of rent by
him during the proceeding for eviction or Appeal. After Section
13 was substituted in 1983, the legislative intent marks 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 of Section
13, but he is compelled by law, even after an Order of Eviction
has been passed against him and when he challenges the Decree
or Order for Eviction by way of an Appeal or other proceeding, to
deposit within one month of the institution of the Appeal or other
proceeding the amount equal to the rent. He may also, on an
application made to the court, deposit the amount or pay within
such further time, as the court may allow. The amount, to be paid
by the tenant, is to be calculated at the rate of the rent at which it
was paid. So far, there is no controversy. The conundrum is
introduced by the following words in Section 13 "for the period
for which the tenant may have made default". It is here that the
debate sharpens. [Paras 19-21][326-D-H; 327-A-C]
1.2 One of the salient features of the Act. Section 11A
provides that Chapter III, in which Sections 12 and 13 appear,
shall not apply to matters provided, especially in Chapter IIIA to
a 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, inter
alia. The proceeding is instituted under Chapter IIIA before the
Rent Controlling Authority (hereinafter referred to as, 'the
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Authority'). The grounds for eviction under Chapter IIIA are
bonafide need for the residential and non-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 Section
23C. He must obtain leave to contest. Section 23D provides for
the procedure to be followed by the Authority to grant leave.
Section 23E declares that no Appeal shall lie from any Order
passed by the Authority. However, Section 23E(2) clothes the
High Court with revisional jurisdiction both suo motu or an
application by an aggrieved person. Section 23F provides that
the stay of operation of the Order of Eviction by the Authority or
the High Court, shall not enure for a total period of more than six
months. As far as the proceedings, covered by the landlord, not
falling in Section 23J, but falling under Section 2(b), which defines
the word "landlord" is concerned, the Act contemplates the
Authority being endowed with certain powers of a Civil Court
under Section 29. An Appeal is provided to the District Judge or
the Additional District Judge from every Order of the Authority.
Another feature of the Act is that a Second Appeal lies under
Section 32, on grounds, which may be described as
beingparimateria with Section 100 of the Code of Civil Procedure,
1908 (hereinafter referred to as, 'the CPC', for short), as it stood
prior to the amendment in the year 1977. [Paras 22, 23][327-GH; 328-A-C-F-G]
1.3 However, it is apposite to notice that the Act was
enacted in the year 1961. Section 12(1), which provides for
grounds of eviction of tenants, provides that no Suit shall be filed
in any Civil Court against the tenant 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
an Officer not below the rank of Deputy Collector, to be the Rent
Controlling Authority for the area in his jurisdiction. As already
noticed, the said Authority was to have the same powers, as vested
in a Civil Court, in regard to certain matters. Therefore, in an
area, where there is no such Authority notified under Section 28,
the Law- Giver contemplated a Suit before the Civil Court. It is
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in this context, apparently, that the law provided that Section 13
contemplates Decree being passed for eviction and protection
under Section 13 being extended in an Appeal from such Decree.
In fact, in the cases before us, the proceedings are suits, appeals
under Section 96 of the CPC and second appeals under Section
100. What is, however, relevant from a reference to Chapter IIIA,
which provides for eviction on the grounds of bonafide
requirement, is that, vide Section 23H, Section 13 has been made
applicable 'mutatis mutandis'. Section 23H makes Section 13
applicable, not only in an application for recovery of possession
under Section 23A, but it also is made applicable in respect of a
proceeding for Revision under Section 23E against a Final Order
by the Authority under Section 23C and Section 23D, as they
apply to a proceeding instituted under Section 12. It must be
noticed that Chapter IIIA was inserted vide the very same
amendment (Act 27 of 1983), which also resulted in Section 13
being substituted. In other words, Section 13, as substituted, was
intended to apply mutatis mutandis, undoubtedly, to a Revision
maintained against a Final Order under Section 23C or Section
23D. Section 23C contemplates an Order of Eviction, being
passed against the tenant, if the conditions in the said provision
are satisfied. Section 23F also contemplates a stay being granted
by the High Court in a Revision under Section 23E of the Order
of Eviction. Therefore, when Section is made applicable to a
Revision filed against an Order of Eviction under Section 23C,
the Revision would be a Revision filed by the tenant, who has
suffered an Order of Eviction under Section 23C. What is,
however,more important is that, under the scheme of Chapter
IIIA, that is the fast-track procedure, as it were, contemplated
for the special categories of landlords falling under Section 23J,
it provides only for bonafide requirement as the ground for
seeking eviction. If eviction is sought, in other words, on the
ground of arrears of rent, it may be open to the landlord to invoke
the provisions of Section 12. The special right, however, to invoke
the shorter and faster route to obtain an Order of Eviction, is
available to the landlord, falling under Section 23J, only in respect
of grounds of bonafide requirement. The relevance of this lies in
concluding that, by the insertion of Chapter IIIA along with the
substitution of Section 13, and by virtue of Section 23H, making
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Section 13 applicable even to the proceeding under Chapter IIIA,
when an Order for Eviction is passed under Section 23C and the
tenant challenges such an Order of Eviction by a Revision, he is
expected to pay the amount, as provided in Section 13(1), during
the pendency of the Revision. No doubt, in a proceeding under
Chapter IIIA, the Law-Giver has limited the operation of a Stay
Order of Eviction to the total period of six months.As already
noticed, as far as a proceeding contemplated under Chapter III
by the ordinary landlord is concerned, if we may use that
expression, falling under Section 2(b), Section 13, as such, applies.
We have only attempted to divine the impact of Section 23H, to
find that, even in a proceeding by the special category of landlords,
falling under Section 23J, and what is more, where eviction cannot
be 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 to
reveal the mind of the Legislature, and the ambiguity shrouding
its real intention, is to some extent, effaced. [Paras 24-27][329B-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 seeking
eviction on the ground of arears of rent, the Act protects the
tenant by permitting him to deposit the amount in arrears, which
constitutes a ground for seeking eviction, in the first place, in
the manner provided in Section 13. As explained by this Court in
Sobhagyamal (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 Section 12(3). Undoubtedly, in order that Section 12(3) apply,
not only must the tenant pay the amount in arears, which is the
basis for the application under Section 12(1)(a), but he must
continue to pay the amounts, which are further mentioned in
Section 13. Section 13(5), no doubt, again must be read along
with Section 12(3). Section 13(5) interdicts the passing of the
Decree or Order by the Court for recovery on the ground of
default of payment of rent if compliance was made by the tenant
of the requirement 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 inapplicable in the case where the ground of
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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 the
landlord invokes default in payment of rent, as a ground for
eviction. The argument of the respondent- landlord, therefore,
is that this circumstance, along with the use of the words, "for
the period for which the tenant may have made default", in Section
13, would indicate that the protection from eviction, is not available
unless the suit is made under Section 12(1)(a). To make it further
clear, the argument is that the Legislature has articulated the
intention to protect the tenant upon his paying the amount under
Section 13 only qua the tenant sued for eviction on the ground of
arears of rent. The landlord further argues that Section 13(6)
indicates that, if there is failure on the part of the tenant to pay or
deposit the amount under Section 13, the Court is free to strike
off the defence and proceed with the hearing of the matter. Section
13(6) has been interpreted by this Court, as noted by us earlier
in Shyamcharan Sharma (supra). As held by this court, the Court
has a discretion to condone the default in payment of rent and
extend the time of payment of rent. Section 13(6) does not compel
the Court to order eviction of a tenant, found in violation of Section
13. This view has also been followed in Ram Murti, as well. [Para
28][330-G-H; 331-A-G]
Sobhagyamal and another v. Gopal Das Nikhra (2008)
3 SCC 788 : [2008] 3 SCR 243; Ram Murti vs. Bhola
Nath and another (1984) 3 SCC 111 -referred to.
1.5 The opening words of Section 13 provide that, on a Suit
or any other proceeding, being instituted by a landlord on any of
the grounds referred to in Section 12, the tenant is to deposit in
Court 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 Suit
or any other proceeding is instituted by the landlord? To
expatiate, after the above opening words in Section 13, by virtue
of the substitution effected by Act 27 of 1983, can it mean that
the words "or in an Appeal or in any other proceeding by a tenant
against any Decree or Order for his eviction", is not to be read
along with "on of the grounds referred to in Section 12"? To put
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it in a different manner, can it be said that the substituted
provisions of Section 13 contemplated that the Appeal or any
other proceeding by the tenant, 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 construction of the provision, which consists
of an elongated sentence to which meaning cannot be attached,
except by bearing in mind the statutory duty of the tenant to
deposit the amount for the period for which the tenant may have
made default. In other words, if the words "for the period for
which the tenant may have made default" is an indispensable
requirement to apply Section 13, then the substituted provisions,
extending the protection in an Appeal or other proceeding by a
tenant, would be confined to a proceeding under Section 12(1)(a).
In this regard, we may also look for any inkling available in Section
13 for the proposition that Section 13 is attracted in an Appeal or
other proceeding by the tenant, on any of the grounds under
Section 12. This would mean that Section 13 would apply even if
the ground of eviction is not one under Section 12(1)(a). The
words "Appeal or proceeding, as the case may be", were inserted
in sub-Section (6) of Section 13 by Act 27 of 1983. This was in
keeping with the substitution effected in Section 13(1), whereby
the words "or in any Appeal or any other proceeding by a tenant,
against any Decree or Order for his eviction", also came to be
added. Therefore, the legislative history tends to indicate that
Sections 13(1) and 13(2) are to apply in any Appeal or other
proceeding against the Order or Decree of Eviction on any of the
grounds under Section 12. [Paras 29, 30][331-G-H; 332-AH; 333A]
1.6 Act 27 of 1983, inserted the words "or in any Appeal or
any other proceeding by a tenant against any Decree or Order
for his eviction". The word any" is intended to convey a wide
meaning. The Decree of Eviction may be a Decree passed on any
of the grounds. It need not be onfined to a Decree passed under
Section 12(1)(a). This is also to be understood in the context of
the words "on any of the grounds referred to in Section 12",
being used, preceded by the words in a Suit or other proceeding
instituted by the landlord. The problem persists in the form of
the logical culmination of the command to the tenant in an Appeal
or other proceeding, against any Decree of Eviction, to deposit
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the rent or pay for the period, for which the tenant may have
made default. Undoubtedly, in the context of Section 12(1)(a) read
with Section 12(3), the words "for the period for which the tenant
may have made default", is perfectly apposite. In other words,
when Section 12(3) provides that no Decree shall be passed for
eviction under Section 12(1)(a), if the tenant makes the deposit
or payment of the amount of rent, under Section 13, it is intended
to mean that, even if the tenant has invited the wrath of Section
12(1)(a), he would 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 of the service of summons
and made further deposits/payment.However, Section 13 clearly
is intended to apply in a Suit or proceeding instituted by the
landlord on any other grounds under Section 12. If that be so, the
words, "for the period, for which, the tenant may have made
default", may not apply, as the tenant may not be in default and
no 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 into
insignificance and irrelevance. It would then mean that, in a
proceeding under Section 12, which does not involve Section
12(1)a), or in other words, when there is no default within the
meaning of Section 12(1)(a), the protection would be available to
the tenant, only if, he makes a deposit or payment for the period
during the pendency of the proceeding. In other words,
throughout the proceeding by the landlord, on any of the grounds
under Section 12, the tenant is obliged to deposit the amount of
rent. The failure to do so, would attract Section 13(6) and it is
open to the Court to strike off the defence and proceed further
in the matter. [Paras 31-33][333-A-H]
1.7 If that be so, in an Appeal or any other proceeding by
the tenant against an Order of Eviction, which does not involve
Section 12(1)(a), the intention of the Law- Giver appears to be
that the tenant, so described, 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 rent under Section 13(1) or Section
13(2), as the case may be, in the manner provided, till the
termination of the Appeal or proceeding. We may profitably
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appreciate the problem through the prism of Section 23H, which
we have already adverted to. Section 23H was also inserted by
Act 27 of 1983. Thereunder, the provisions of Section 13 is to
apply mutatis mutandis, inter alia, in respect of a proceeding for
Revision under Section 23E, against an Order of Eviction under
Section 23C, as they apply to a Suit or a proceeding instituted on
any of the grounds referred to in Section 12. The words "mutatis
mutandis", is a well-known legislative device, employed for the
purpose of adaptation of a law in an altered context. It must be
remembered that Section 13 contemplates proceedings under
Section 12 and on any grounds thereunder. The impact of Section
23H, applying Section 13 mutatis mutandis, is that, since Section
12 is inapplicable in a proceeding under Section 23A, wherein
the grounds are only of bonafide requirement, as provided therein,
Section 13, in its application under Section 23H, would mean that
the proceeding by 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 tenant against an Order under Section 23C,
the ground of eviction, can only be the ground under Section
23A. In other words, in its application to a proceeding under
Chapter IIIA, in a Revision by the tenant against an Order of
Eviction, Section 13 is intended to apply, even though, eviction
is not based on the ground under Section 12(1)(a). This is for the
reason that there cannot be an Order passed under Section 23A
on the ground under Section 12(1)(a), as the same is inapplicable.
Thus, in such a Revision by a tenant against an Order under
Section 23C, the presence of the words in Section 13, "for the
period for which the tenant may have made default", would not
become an insuperable obstacle. In other words, in such a
Revision, the law obliges the tenant to pay the rent for the period,
which may include the period, into which, he may have fallen in
arrears, before the filing of the Revision and also for subsequent
periods. [Paras 34-36][334-A-D; 334-H; 335-A-D]
Ashok 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 which
Section 13 is intended to apply, even in a proceeding under
Chapter IIIA, having regard to the wide words used in the newly
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substituted avatar of Section 13, viz., "any Appeal or other
proceeding by the tenant against any decree", the word "any"
should be read harmoniously with any of the grounds referred to
in Section 12, appearing earlier in Section 13. Thus, even in an
Appeal or other proceeding, Section 13 would apply, despite there
being no ground for eviction under Section 12(1)(a). The law was
so enacted by substitution in 1983, so that during any litigation
launched by the tenant against any Order of Eviction, the landlord
is assured of the amount which is calculated at the rate of rent at
which it was being paid. Section 13(2) takes care of the situation
where there is a dispute relating to the amount of rent.We must
notice that the Act also does contemplate the fixation of standard
rent. Section 7 deals with standard rent. It contemplates an
increased standard rent in case of a non-residential
accommodation. Section 8 provides for lawful increase of standard
rent in certain other cases. No doubt the respondent would point
out that after an order or decree of eviction is passed no application
may lie. Even accepting the same, nothing stands in the way of
the 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 proceeding
launched by the tenant, would be imperilled and an adverse
decision, resulting in eviction, could follow, unless the Court
extended the time for payment of rent.Section 13(1) of the Act is
a 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 before
us, does not bear resemblance to Section 13(1) of the Madhya
Pradesh 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 is
passed, on a ground, other than under Section 12(1)(a), even after
the tenant complies with the requirement of Section 13 and
deposits the rent, as was being paid, whether the Appellate Court,
when approached by the appellants- tenants, seeking a stay of
the execution of the Decree under Order XLI Rule 5 of the Code
of Civil Procedure, 1908 (hereinafter referred to as, 'the Code',
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for short), they could be asked to deposit an amount representing
a reasonable market value of the rent. Undoubtedly, in the Act,
the definition of the word "tenant", does not include a person
against whom an Order or Decree of Eviction has been passed.
In the said sense, the Act can be treated as similar to the Delhi
Rent Control Act. 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 Court in Atma Ram
Properties (supra). The principle in Atma Ram Properties (supra),
therefore, would apply unless Section 13 poses an obstacle in
the path of the Appellate Court directing the payment of the mesne
profits by the appellants as a condition of stay of execution. In
Section 13 of the Act the law giver has given a section heading
'when a tenant can get benefit of protection against eviction'. It
is thereafter that the provisions are enacted. Sub section 5 of
Section 13 relates only to a suit in which the ground of eviction is
default of payment of rent. As far as Section 13 (6) is concerned it
deals with a situation where the tenant fails to deposit or pay the
amount under Section 13 of the Act. Prior to Section 13 being
substituted in the year 1983 it contemplated that the court may
strike out the defence against eviction and proceed with the
hearing of the suit. It was this provision which was interpreted in
Shyamcharan Sharma (supra) to mean that the court still has a
discretion and is empowered to grant extension of time to pay
rent under Section 13. By virtue of the substitution in the year
1983 in Section 13 (6) in view of the addition of the words 'appeal
or proceeding as the case may be', on the failure of the tenant to
deposit or pay the amount as required by Section 13 the court is
empowered to strike out the defence against eviction is made
applicable to an appeal or proceeding by the tenant. An appeal
and proceeding can be disposed off which essentially means that
an Order of Eviction would ordinarily follow as the appeal or other
proceeding by the tenant is against an Order of Eviction which is
already 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 - relied
on.
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1.10 Now, as far as a suit for eviction based on ground other
than Section 12(1)(a), viz., arrears of rent. Section 13 expressly
does not provide as to what is to happen if the tenant complies
with requirement of Section 13 as distinct from the failure of the
tenant to comply with Section 13. In this case we are concerned
with the former namely what would be the position if the tenant
faithfully complies with the mandate of Section 13 and has
deposited/ paid the amount. There is no express intention
expressed by the law giver in this regard in Section 13.Therefore,
this provision indicates that despite payment being made by the
tenant of the amount in terms of Section 13 in a revision filed
within the meaning of Section 23H an order of stay of eviction
may still be necessary. In other words, ipso facto, the mere
payment of the amount in terms of Section 13 would not shelter
the tenant who has filed a revision referred to in Section 23H
from being proceeded against in execution of the decree. The
law giver has contemplated an order of stay being passed in Section
23F with the restraints regarding the duration of the stay order
which has been declared therein.Thus, the payment of the amount
mentioned in Section 13 in a Chapter III proceeding by itself
may not result in a stay of the decree or Order of Eviction. [Paras
45, 47 and 48][340-D-E; G-H; 341-A-B]
1.11 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 it was paid". The further expressions used are
"a sum equivalent to rent at that rate". These expressions are
used to denote the amount payable by the person described as
tenant, both before the Order of Eviction is passed and after the
Order of Eviction, during the pendency of appeal or proceeding,
as the case may be. We are making this observation for the reason
that if the words "an amount calculated at the rate, at which, it
was paid or a sum equivalent to the rent", is understood as
describing the amount, which is not the rent as such, but the
amount, which, the person was obliged to pay as a tenant, after
the Order of Eviction is passed, then, it could be said that, what
is contemplated is that, the amount directed to be paid, is treated
as not the rent as such, but the amount equivalent to the amount
or an amount calculated at the rate of rent. Such an amount, being
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payable, may be reconcilable with the Order of Eviction, putting
an end to the tenancy and erstwhile tenant becoming a person in
illegal possession. But herein, we may notice that the same
expression is used even for describing the amount payable during
the pendency of proceeding under Section 12. In other words,
these words are applicable to describe the amount payable at all
points of time, including the pendency of the suit, appeal or other
proceedings. To make it even more clear, both, at the stage when
landlord-tenant relationship exists and, at the stage, when
following an Order of Eviction, going by the definition of 'tenant'
in Section 2 of the Act, the erstwhile tenant would cease to be a
tenant, the amount payable in Section 13 is described in the similar
manner. In fact, there is no case as such that the amount which 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
the appellants.As far as the aspect about the former tenant, even
after the Order of Eviction being referred to as a tenant, even
when he maintains an appeal against a Decree/Order of Eviction
is concerned, we would think that it can be a legislative device to
aptly describe the person in question devised by the Legislature.
In this regard, the more important question is, whether after the
Order of Eviction is passed, the erstwhile tenant would remain a
tenant in law. The tenant begins his innings ordinarily as a
contractual tenant. In the case of a contractual tenant, upon the
expiry of the lease, he is under the Transfer of Property Act and,
in accordance with the contract, duty-bound to vacate the
premises and deliver possession to the landlord. Failure on his
part to do so, would expose him to an action for mesne profits, on
the basis that his continuance after the period and contrary to
the contract, would be wrongful. In the case of a statutory tenant,
which, undoubtedly, the tenant was, the mere expiry of the
contractual lease, does not result in the tenancy coming to an
end under the laws relating to the statutory tenancy. It is with the
Order of Eviction, which is passed, that the erstwhile tenant
ceases 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 enables
the filing of appeal or other proceeding by the erstwhile tenant.
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The law prescribes the period of limitation. Does it mean that
the possession of the erstwhile tenant or rather his occupation of
the premises, after the Order of Eviction, is not wrongful? What
will be the position, if he prefers an appeal, after a long delay and
delay is condoned? Can it be said that during the period delay, at
any rate, that the erstwhile tenant sheds his character as illegal
occupant? We would think that with the passing of Decree or
Order of Eviction, the erstwhile tenant, no longer, remains a
tenant. He continues to occupy the premises, which, in law, is
wrongful. Under the law, generally, continued occupation of 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 statutory tenancy occurs with the passing of
the Order of Eviction and, in the case of the contractual tenancy,
upon the expiry of the lease, the possession of the erstwhile
tenant, indeed, becomes wrongful. The fact that the law permits
the filing of an appeal or other proceeding, will not detract from
the aforesaid position. This position is self-evident from the
decision in Atma Ram (supra). The Judgment in Atma Ram (supra)
makes it clear that the erstwhile statutory tenant would become
an unauthorised occupant upon the passing of the Order by the
original Forum. This Court has further held that fact that the Order
of Eviction has been challenged in an appeal or revision and it is
confirmed at a later point, will not enable the erstwhile tenant to
contend 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 of
Section 13 of the Act, will become clear. We have already noticed
that the actual protection, which is provided in Section 13 of the
Act, as far as the cases we are concerned with, is contained in
Section 13(6) of the Act. Upon the tenant, as described in Section
13, paying the amounts as provided therein, the tenant is allowed
to, inter alia, prosecute the appeal or other proceeding. The failure
to comply with Section 13, will result in the consequences, which
are provided therein. Since, we are concerned here with the
consequences of tenant acting in conformity of Section 13 of the
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Act, apart from noticing, what we have already indicated, we would
examine, whether it has the effect, which is canvassed for by the
appellants.We are of the view that even though Section 13 does
refer to the erstwhile tenant as a tenant and it obliges him to
deposit throughout the proceedings, the amounts, which can be
treated as the rent being paid, which would be contractual rent
or even the rent fixed as the standard rent, this does not, by
itself, alter the effect of the Decree/Order of Eviction passed by
the Court, by which, he stood deprived of the status of a tenant.
The filing of an appeal or other proceeding by the tenant, does
not make the Decree inexecutable. The preferring of an appeal
or other proceeding, would not bring about a stay of the
proceedings based on the Decree or Order of Eviction. The
payment of the amounts under Section 13(1) or Section 13(2) of
the Act, does not, by itself, bring about the stay of the Decree or
Order of Eviction. The net result is, the principle in law and, as
recognised in Section 2(i) of the Act, and, as interpreted in Atma
Ram (supra), that with the passing of the Order of Eviction by
the 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 stood
deprived of the status of a tenant, does not regain the said status
by mere reason of 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 definition in Section 2(i) of the Act,
will continue to hold the field, even after an appeal or other
proceeding is maintained by him. Therefore, Section 13 of 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 larger Bench decisions of the High Court, which we have
referred to, the Legislature wanted to ensure that even during
the appeal filed by the tenant, inter alia, he would continue to pay
the agreed rent. [Paras 57, 58][344-G-H; 345-A-F]
1.13 The erstwhile tenant, such as the appellants in these
cases, despite making payment, in accordance with Section 13 of
the Act, would not be protected from being evicted in terms of
the Decree/Order of Eviction during the pendency of the appeal
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or proceeding. It is open to the appellant, inter alia, in challenging
the Decree/Order of Eviction to seek stay of the Decree/Order
of Eviction. It is then that the Appellate Court can exercise its
powers under Order XLI Rule 5 of the CPC.We have found
reinforcement in Section 23F of the Act falling in Chapter IIIA,
which also contemplates Orders of Stay being passed, even though
Section 13 has been made applicable by virtue of Section 23H.
As regards the power of the Appellate Court, to grant a stay, it is
clear that it is open to the Appellate Court, to impose such
condition, as it thinks fit. It can issue directions, as held by this
Court in Supermax International (supra).