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Smt. Krishnabai Babulal Mishra v. Smt. Laxmibai .
Structured Summary of the Provided Opinion
Factual and Procedural Background
The reference arises from a suit brought by the appellant (plaintiff/landlord) against the respondent (defendant/tenant) for ejectment under Section 12 of the M. P. Accommodation Control Act, 1961. The plaintiff alleged that the accommodation had become unsafe for human residence unless extensive repairs were effected; that the accommodation was required for use by some relations of the plaintiff; that the defendant had sublet the premises; and that the defendant had caused substantial damage to the premises. The defendant resisted the suit.
The trial Court dismissed the plaintiff's suit, holding that none of the pleaded grounds under Section 12 were made out. On first appeal, the appellate Court struck out the respondent's defence under Section 13(6) of the Act but nevertheless dismissed the plaintiff's appeal because the plaintiff had failed to establish any ground under Section 12. The plaintiff then preferred a second appeal. In that second appeal, the single Judge rejected the defendant's contention that striking out the defence was erroneous, and a conflict of views (including a decision in Mst. Hajara Begum v. Guljar Khan) led to a reference by Bhave, J. to a Division Bench on specific questions about the legal effect of striking out a defence under Section 13(6).
Legal Issues Presented
- Whether the effect of striking out the defence under Section 13(6) of the M. P. Accommodation Control Act, 1961 is to take the case out of the ambit of that Act and to render the suit governed solely by the Transfer of Property Act?
- Whether the effect of striking out the defence under Section 13(6) is only to preclude the tenant from adducing positive evidence to show that none of the grounds are made out, while the burden of making out a prima facie case of the existence of the grounds still remains on the plaintiff?
Arguments of the Parties
Appellant's (Plaintiff's) Position
- The plaintiff sued for ejectment under Section 12 of the M. P. Accommodation Control Act, asserting one or more statutory grounds (premises unsafe unless repairs effected; required for relations; subletting by defendant; substantial damage caused by defendant).
- Implicit in the procedural history is that the plaintiff sought to rely on those Section 12 grounds to obtain a decree for eviction.
Respondent's (Defendant's) Position
- The defendant resisted the suit at trial. On appeal, learned counsel for the defendant contended before a single Judge that the appellate Court was in error in striking out the defence under Section 13(6) (i.e., argued that striking out the defence was improper).
- The defendant relied on the consequences of the appellate Court's prior ruling and the statutory scheme to defend against eviction; after striking out, the defendant sought the benefit of any available limited contest on general-law matters as permitted by the statutes and case law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mst. Hajara Begum v. Guljar Khan, S.A. No. 940 of 1965 (Dated 3-3-1969, M.P.) | The cited judgment took the view that once a defence under Section 13(6) is struck out the suit is effectively taken out of the ambit of the Accommodation Control Act and becomes governed by the Transfer of Property Act alone (i.e., that the statutory protection in Section 12 is no longer applicable). | The present Court considered this view and explicitly disagreed with it. The Court held that Section 13(6) does not make Section 12 inapplicable; instead striking out leads to an ex parte proceeding only with respect to the Section 12 issues, but does not convert the entire suit into one governed solely by the Transfer of Property Act. |
| Premdas v. Laxmi Narayan, 1964 MPLJ 190 | Support for the proposition that striking out the defence under Section 13(6) does not preclude the tenant from raising defences available under the Transfer of Property Act (for example, that there is no landlord-tenant relationship or that the lease was not determined under Section 111). | The Court relied on this authority to illustrate that, notwithstanding the striking out of the defence under Section 13(6), a tenant may still raise certain general-law defences under the Transfer of Property Act; the striking out applies specifically to defences under Section 12 of the Accommodation Control Act. |
Court's Reasoning and Analysis
The Court began by distinguishing the general law (Transfer of Property Act) from the special enactment (M. P. Accommodation Control Act). It identified Section 12 of the Accommodation Control Act as the "pivot" restricting the landlord's right to file a suit for eviction: a landlord must establish (a) that the contractual tenancy has been validly determined under the Transfer of Property Act and the parties' contract, and (b) that at least one of the grounds enumerated in Section 12 exists. Both elements are “sine qua non” for a decree for eviction.
The Court then examined Section 13(6), which authorises the Court, if the tenant fails to comply with Section 13's deposit/payment obligations, to "order the defence against eviction to be struck out and shall proceed with the hearing of the suit." From the language of that subsection the Court drew two principal consequences:
- First consequence: The defence which is struck out is the defence against eviction under Section 12 of the Accommodation Control Act. Striking out that defence does not bar the tenant from raising any defences available under the Transfer of Property Act — for example, denying the existence of a landlord-tenant relationship or contending that the lease has not been determined as required by Section 111. The Court relied on the cited case Premdas v. Laxmi Narayan to support this point.
- Second consequence: Striking out under Section 13(6) precludes the tenant from being heard on the question whether any ground under Section 12 exists. Practically, the written statement insofar as it concerns Section 12 averments is to be ignored; the tenant cannot cross-examine the plaintiff's witnesses or produce evidence in rebuttal on Section 12 issues. Thus the suit proceeds ex parte with respect to the Section 12 question.
Despite this ex parte effect on Section 12 issues, the Court emphasised the elementary requirement that the plaintiff must plead and prove the cause of action. The grounds in Section 12 are not mere defences; they constitute the cause of action that entitles the plaintiff to sue for ejectment. The Court rejected the view that striking out under Section 13(6) removes Section 12 from application to the suit — observing that Section 13(6) contains no language that would explicitly direct the Court to "proceed ... without entering into an enquiry whether any ground under Section 12 exists." The statutory mandate to "proceed with the hearing of the suit" must therefore be read as proceeding according to law, i.e., the plaintiff still must prove entitlement to relief.
The Court concluded that the practical effect of striking out is to place the plaintiff in the position of having an ex parte case only on Section 12 issues (thus making the plaintiff's burden lighter), but it does not (a) confer any additional substantive right on the plaintiff, or (b) render Section 12 inapplicable. The defendant, though precluded from contesting Section 12 questions by adducing evidence, remains entitled to contest matters governed by the Transfer of Property Act. Finally, the Court explained the appellate consequence: where a defence is struck out in the appellate Court, that Court must still determine, on the plaintiff's trial evidence, whether a ground under Section 12 has been proved; the defendant may be heard to the limited extent of submitting that the plaintiff's evidence is insufficient to prove any ground under Section 12, but the defendant's written statement and relevant evidence will not be considered.
Holding and Implications
Holding: The Division Bench answered the reference as follows (summarised):
- The effect of striking out the defence under Section 13(6) is that the suit proceeds ex parte to the extent it relates to Section 12 of the Act: the written statement insofar as it relates to plaint averments concerning Section 12 is overlooked; the defendant is precluded from cross-examining the plaintiff or its witnesses and from producing evidence on questions relating to the Accommodation Control Act. The plaintiff's burden to establish at least one of the grounds under Section 12 becomes lighter.
- Striking out under Section 13(6) does not make Section 12 inapplicable nor confer any substantive additional right on the plaintiff: the plaintiff must still establish entitlement to eviction both under the general law (Transfer of Property Act) and under Section 12 of the Accommodation Control Act. The defendant can still contest the suit on general-law points, although Section 12 issues proceed ex parte.
- Where the defence is struck out in the appellate Court, the appellate Court must still assess whether the plaintiff's evidence proves a ground under Section 12: the defendant may be permitted to argue that the plaintiff's evidence is insufficient to prove any ground under Section 12, but the defendant's written statement and its evidence on that aspect will not be considered.
Direct consequences for the parties:
- The plaintiff is not relieved of the burden of proving a cause of action; proof of a ground under Section 12 remains necessary for an eviction decree even where the defendant's Section 12 defence has been struck out.
- The defendant loses the ability to contest Section 12 issues by adducing evidence or cross-examining, but retains the right to raise and be heard on defences available under the Transfer of Property Act (for example, disputing the existence of a landlord-tenant relationship or non-determination of the lease).
- On appeal, courts must examine whether plaintiff's trial evidence suffices to establish a Section 12 ground despite the striking out; the defendant may make limited submissions as to insufficiency of the plaintiff's evidence.
No part of the above summary introduces facts or legal propositions not contained in the provided opinion. Where the opinion contained express findings, those are reported here verbatim in substance; where the opinion was silent, no inference beyond the text has been made.
1. This reference has been made by Bhave, J. in the following circumstances. The appellant brought a suit against the respondent for ejectment under Section 12 of the M. P. Accommodation Control Act, 1961, (hereinafter called the Act), on the ground that the suit accommodation had become unsafe for human residence, unless extensive repairs were effected; that the suit accommodation was required for the use of some relations of the plaintiff; that the defendant had sublet the suit premises; and that the defendant had caused substantial damage to the premises let out. The suit was resisted by the defendant.
The trial Court dismissed it holding that not one of those grounds was made out.
2. The plaintiff appealed. At her instance, the first appellate Court struck out the respondent's defence under Section 13(6) of the Act. However, the first appellate Court dismissed the plaintiff's appeal because she had not established any one of the grounds under Section 12 of the Act. The plaintiff then preferred this second appeal.
3. When this second appeal was placed for hearing before a learned single Judge, learned counsel for the defendant urged that the lower appellate Court was in error in striking out the defence. This contention was rejected by the learned single Judge. Then the question which arose for his consideration was whether the burden of proving one of the grounds under Section 12 of the Act still remained on the plaintiff notwithstanding the defence having been struck out. A decision of another learned Judge, in Mst. Hajara Begum v. Guljar Khan, S. A. No. 940 of 1965. D/- 3-3-1969 (M. P.), was cited before the learned single Judge, where the learned Judge in the cited case, had observed as follows:--
"Under the ordinary law, a tenancy is a matter of contract between a landlord and his tenant and is governed by the provisions of the Transfer of Property Act, with the result that a landlord is entitled to evict his tenant after determining his tenancy in accordance with the provisions of the Transfer of Property Act. Section 12 of the Madhya Pradesh Accommodation Control Act, however, puts statutory restrictions on the rights of the landlord in the matter of eviction of tenants by providing that 'notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds' which are then enumerated in clauses (a) to (p) of the Act. But Section 13 at the same time casts certain duties and obligations on the tenant if he wants to get the benefit of these statutory restrictions against eviction. The intention of the Legislature thus appears to be that tenants who do not comply with the provisions of section 13, cannot get any statutory protection against eviction granted by the Act and cannot therefore claim that the plaintiff landlord cannot evict them unless he has complied with the provisions of section 12 of the Act. The statutory immunity, from eviction which has been enacted in Section 12 of the Act for the benefit of the tenant is not available to him and the suit becomes in fact a simple suit governed by the provisions of the Transfer of Property Act whereunder the landlord can evict his tenant after determining his tenancy in accordance with the provisions of that Act.
As the only defences of the defendant tenant against his eviction were those which were provided by the Act and which were now not available to him, the suit of the plaintiff landlord must be decreed with costs."
Since the referring Judge, did not agree with the other learned Judge in the above observations, he has referred the following questions for being decided by a Division Bench:--
"(1) Whether the effect of striking out the defence under Section 13(6) of the M. P. Accommodation Control Act, 1961, is to take out the case from the ambit of that Act and to render that suit as one governed by the Transfer of Property Act alone?
or (2) Whether the effect is only to preclude the tenant from adducing positive evidence to show that none of the grounds are made out but the burden of making out a prima facie case of the existence of the grounds still remaining on the plaintiff?"
4. Under the general law, the legal relations between the landlord and tenant are governed by the contract of tenancy between them. The law relating to the landlord's right to eject the tenant and the tenant's liability of being ejected is to be found in the Transfer of Property Act.
5. The accommodation control act is a special enactment conferring certain special rights and imposing certain special obligations upon the landlords and tenants. One of the objects of this special enactment is to regulate and control the eviction of tenants. Section 12 is the pivot. Under the Transfer of Property Act, once the tenancy is determined according to Section 111, the lessee is bound to put the lessor into possession of the property. The landlord acquires right to possession under Section 108(q) of the Transfer of Property Act, but Section 12 of the Accommodation Control Act then steps in. It imposes a restriction on the right of the landlord to eject his tenant, except on one or more of the grounds enumerated in it. Sub-section (1) of Section 12 reads thus:--
"12. Restriction on eviction of tenants.-
(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:--..............."
6. It is thus quite clear that the landlord, in order to entitle him to a decree for eviction, must prove: (1) that the contractual tenancy of the demised premises has been validly determined having regard to the provisions of the Transfer of Property Act and the contract between the parties; and (2) at least one of the grounds enumerated in Section 12 exists. If either of these two is not proved, a decree for eviction cannot be passed. Both these factors are sine qua non for a decree for eviction.
7. Section 13 of the Act imposes an obligation on the tenant to deposit in Court or pay to the landlord all arrears of rent and also to go on so depositing or paying rent throughout the pendency of the suit within the time prescribed in the two parts of that section. Sub-section (6) of Section 13 then lays down the consequences of non-compliance with the requirements of section. It runs thus :--
"13(6). If 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."
Two things are abundantly clear from the language of Sub-section (6). The first is that the defence against eviction, which is struck out is the defence against eviction of the tenant under Section 12 of the Act. Such striking out of the defence does not debar the tenant from taking any defence to which he is entitled under the Transfer of Property Act. Notwithstanding such striking out of the defence he can still show, for instance., that there is no relationship of landlord and tenant between him and the plaintiff, or that the lease was not determined as required by Section 111 of the Transfer of Property Act, so that during the subsistence of the lease he cannot be elected. This was also the view taken in Premdas v. Laxmi Narayan, 1964 MPLJ 190.
8. The second consequence is that when the tenant's defence is struck out under Section 13(6), he loses his right to be heard on the question whether there exists a ground under Section 12 of the Act. This means that his written statement, so far as it relates to plaint averments concerning Section 12, will be ignored and overlooked by the Court; he cannot cross-examine witnesses produced by the plaintiff, and he cannot produce his own evidence in rebuttal. In effect, therefore, the suit or proceeding is to be treated ex parte so far as the question of Section 12 is concerned.
9. However, it is elementary that the plaintiff, in order to be entitled to a decree, must plead and prove the "cause of action", that is, the bundle of facts which will entitle him to a decree. We have already pointed out from the language of Section 12 of the Act that the existence of one of the grounds under that Section is essential before a decree for eviction can be passed. This is the force of the words "no suit shall be filed ..................
except on one or more of the following grounds only." It is incontestable that the plaintiff will have to make out a ground under Section 12 even where the defendant does not enter appearance at all or does not file any written statement.
10. It is wrong to think that the grounds enumerated in Section 12 are grounds of defence; indeed, they are grounds to constitute a cause of action for the plaintiff to sue for ejectment. There is nothing in the language of Section 13(6) of the Act to exclude the application of Section 12 to a suit as a consequence of the striking out of the defence. If that had been the intention of the framers of the law, then the section would have been so worded, and after the words
"may order defence against eviction to be struck out and shall proceed with the hearing of the suit", there would have been found the following words :--
"and shall proceed with the hearing of the suit without entering into an enquiry whether any ground under Section 12 exists."
The section, as it stands today, merely enjoins the Court "to proceed with the hearing of the suit". The only meaning of this expression is that the Court shall proceed with the hearing of the suit according to law. To put it differently, a decree shall be passed, if the plaintiff proves the cause of action on which the suit is based; otherwise, it will be dismissed.
11. On the above analysis, it must be said that as a consequence of the striking out of the defence under Section 13(6) of the Act, the plaintiff is placed in the same position as if the suit proceeds ex parte in the absence of the defendant. The striking out of the defence does not confer any additional right on the plaintiff, nor is he relieved of his burden, which he has to discharge in order to be entitled to an ex parte decree against the tenant. In every event he has to satisfy the Court that he is entitled to eviction under the general law as well as under the special law, that is, Section 12 of the Act. It is a different matter that when the defence is struck out and the second part of his case is to be treated as ex parte, his burden becomes light.
12. In the result, we answer the reference thus:--
(1) The effect of the striking out of the defence under Section 13(6) of the M. P. Accommodation Control Act, 1961, is that the suit thereafter proceeds ex parte to the extent that it relates to Section 12 of the Act. The written statement, so far as it relates to plaint averments concerning Section 12 is overlooked, the defendant is precluded from, cross-examining the plaintiff or his witnesses and he is also precluded from producing any evidence on any question relating to the accommodation control act. The plaintiff's burden to establish at least one of the grounds under Section 12 of the Act becomes light.
(2) However, the effect of the striking out of the defence under Section 13(6) is not to confer any additional right on the plaintiff or to make the provisions of section 12 inapplicable to the suit. The plaintiff has still to establish that he is entitled to a decree for eviction (a) under the general law; and (b) also under the accommodation control act. And, in spite of his defence having been struck out under Section 13(6), the defendant can still contest the suit as regards (a), although it will proceed ex parte as regards (b).
(3) If the defence is struck out under Section 13(6) in the appellate Court, the appellate Court will still have to see whether on the plaintiff's evidence produced in the trial Court, a ground under Section 12 has been made out. The defendant will be heard on that point to the limited extent of showing that the plaintiffs evidence is not enough to prove any ground under Section 12, but his written statement and the evidence on that aspect of the case will not be considered.
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