1. This is an appeal arising out of a suit for ejectment by the defendant against the judgment and decree dated the 28th June, 1979 of the Court of First Additional District Judge, Indore in Civil First Appeal No. 37-A of 1978, whereby it has confirmed the judgment and decree dated 28th July, 1977, of the Court of Third Civil Judge, Class II, Indore in Civil Suit No. 8A of 1972.
2. Plaintiff-landlord (respondent herein) had filed the present suit against the defendant (appellant herein) for evicting him from the suit accommodation basing the claim for eviction on the grounds enumerated under Sections 12 (1) (a), 12 (1) (c) and 12 (1) (e) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as the 'Act').
3. The two courts below negatived the plaintiff's contention regarding the ground under Section 12 (1) (a) and 12 (1) (e) of the Act, but accepting the case of the plaintiff under Section 12 (1) (e) of the Act, decreed the suit.
4. It may be mentioned that the learned counsel for the plaintiff while supporting the decree on the ground under Section 12 (1) (e) of the Act which was found in favour of the plaintiff also asserted in support to the impugned decree, that the ground under Section 12 (1) (a) of the Act which was decided against the plaintiff should have been decided in favour of the plaintiff.
5. Learned counsel for the defendant had raised a preliminary objection that as the plaintiff did not file a cross-objection within one month from the date of the service of the summons of this appeal, the counsel for the plaintiff was not entitled to assail the finding of the Courts below regarding the ground under Section 12 (1) (a) of the Act.
6. Submission of the learned counsel for the appellant in support of his preliminary objection was that earlier to the Civil Procedure Code Amendment Act of 1976 (Act No. 104 of 1976), the position was that a respondent could support the decree of the Court below by asserting that the matter decided against him should have been decided in his favour without filing any cross-objection; but after the amendment by the said Amendment Act, under Order 41, Rule 22 of the Code of Civil Procedure (hereinafter referred to as 'the Code'), position, has changed. He submitted that even to support the decree by the successful party on the question decided against him filing of cross-objection within the prescribed period of limitation is imperative.
7. Learned counsel for the respondent in counter submitted that the position remains unchanged even after the amendment in Order 41, Rule 22 of the Code and the respondent has a right to support the decree, assailing the finding given by the lower court against him on a particular point.
8. The decision of the preliminary objection involves the interpretation of Order 41, Rule 22 of the Code as it stands, at present. The relevant Rule 22 (1) is as under".
"Order XLI--Appeals from Original Decree, xxxxx Upon hearing respondent may object to decree as if he has preferred separate appeal-
22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 'A' (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) 'A' to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
B (Explanation--A respondent aggrieved by a finding of Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is wholly or in part, in favour of that respondent), (B)".
The portion A to A was substituted for the words "on any of the grounds decided against him in the Court below, but take any cross-objection" (by Act 104 of 1976), Section 87 (x) (1-2-1977).
Portion 'B' to 'B' was inserted ibid.
9. Reliance was placed by the learned counsel for the appellant on the expression "provided he has filed such objection in the appellate Court" (hereinafter referred to as proviso). According to his submission this proviso governs "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" (hereinafter referred to as "expression No. 1") as well as to the expression "and may also take any cross-objection to the decree which he could have taken by way of appeal" (hereinafter referred to as "expression No. 2").
10. For the reasons to follow the preliminary objection deserves to be repelled. It is to be noticed that in between expression No. 1 and expression No. 8 there is a semicolon. Semicolon is used to separate constituent part of a double sentence from one another.
"The semicolon shows that two sentences, each of which should stand alone have been combined into one sentence, and is the chief stop intermediate in value between the comma and the fullstop"
(Corpus Juris Secundum, Vol. 79 page 1038).
Thus the expressions No. 1 and No. 2 deal with two distinct matters and as the proviso is immediately associated to expression No. 2 it is limited in its effect to expression No. 2; the comma between expression No. 2 and the proviso is to represent a short pause.
11. I am convinced that the proviso governs expression No. 2 only, a fortiori by the prefacing of the word "objection" in the proviso by the word 'such'. In Corpus Juris Secunclum, Vol. 83, page 771 it is stated.
"In its natural and ordinary sense, and by grammatical usage the word "such" refers to an antecedent, some antecedent word or phrase, and, more specifically, to the last precedent antecedent, unless the meaning would thereby be impaired. Thus the word "such" refers back to and identifies something previously spoken of, something that has gone before, something that has been specified. It always refers to a class just before pointed out, and should be construed as referring back to a common subject-matter. It may be used as representing the object as already particularized in terms which are not mentioned and it may indicate or suggest a person or thing originally specified by a name or designation".
Bearing this in mind it can be said without hesitation the words "such objection" has a reference to cross-objection occurring in expression No. 2 and has no reference to expression No. 1. It is also of significance to note that in expression No. 1 the legislature has used the words "may also state" whereas in expression No. 2 the words used are "also take any cross-objection". This is indicative of the subtle distinction that the legislature intended between the two.
12. In the light of the foregoing discussion, I am of the firm view that it was not necessary for the plaintiff to file cross-objection to assail the finding of the courts below regarding the ground under Section 12 (1) (a) of the Act. The plaintiff who has not filed cross-objection is entitled to assert that the finding regarding that ground should have been given in his favour so as to support the impugned decree.
13. This view of mine is buttressed from the objects and reasons which are set out below for making the legislative change in Order 41, Rule 22 of the Code.
"Clause 90, Sub-clause (xi) (now Clause (x))--Rule 22 gives two distinct rights to the respondent in appeal. The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case the respondent supports the decree in the second case he attacks the decree. The language of the rule, however, requires some modification because a person cannot support a decree on a ground decided against him. What is meant is that he may support the decree by asserting that the matters decided against him should have been decided in his favour, the rule is being amended to make it clear.
An explanation is also being added to Rule 22 empowering the respondent to file cross-objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour."
14. In the result the preliminary objection raised on behalf of the defendant is rejected and I shall decide the question relating to the ground under Section 12 (1) (a) of the Act for which arguments on merits of the learned counsel for parties have been heard.
15. While admitting the appeal substantial questions were formulated at the time of admission only regarding the ground under Section 12 (1) (a) of the Act. Since I have rejected the preliminary objection of the appellant and as already stated hereinabove, learned counsel for the parties during the time of the arguments were already heard on merits regarding the ground under Section 12 (1) (e) of the Act, I formulate the substantial questions of law, relating to this ground under Section 12 (1) (a) or the Act, as indicated hereinafter for decision. These substantial questions have to be formulated, in view of proviso to Sub-section (5) of Section 100 of the Code. The reasons for formulating these questions are that they are vital for the decision of the point in controversy and one of these questions involves the interpretation of Section 12 (1) (a) read with Section 24 (1) of the Act and there appears to be no authoritative pronouncement of this court as yet on this point as during the course of the argument any decision of this court on such a question was not brought to my notice, the one that was brought to my notice and to which I shall refer hereafter, had considered Section 24 (1) of the Act in a different context.
A) Whether the finding of the lower appellate Court, that ground under Section 12 (1) (a) of the Act, is not made out, is vitiated because the lower appellate court has on misreading of the evidence and/or on no evidence held that defendant No. 1 had tendered the arrears of rent but plaintiff purposely avoided to accept them?
B) Whether in view of Section 24 (1) of the Act, on 16-10-1971 when notice of demand Ex. P. 5 was given the rent demanded vide this notice had not become due, as such no rent was in arrears and accordingly Section 12 (1) (a) of the Act did not come into play on account of the non-payment of the demanded rent within the statutory period in compliance with the notice.
16. Before I start dwelling on the aforesaid questions, it is advisable to give hereinbelow a brief calendar of relevant facts which have bearing and are beyond pale of dispute.
17. The month of tenancy began on the 10th of every month and ended on the 9th of the next month. The notice Ex. P. 5 dated 16-10-1971 demanding rent for the month which expired on 9-10-1971 and the advance rent of the current month was served on defendant on 19-10-1971. Defendant No. 1's contention that immediately after the receipt of notice Ex. P. 5, he had tendered the cheque Ex. D. 2-A for Rs. 131/- (Rs. 120/- rent for one month + Rs. 21/ electric charges) to plaintiff's counsel Jagirdar (D. W. 3), has been negatived.
18. The trial court negatived plaintiff's ground under Section 12 (1) (a) of the Act holding that defendant had complied with both the limbs of Section 13 (1) of the Act, therefore, defendant No. 1 was entitled to protection under Section 13 (5) of the Act and not liable to ejectment on the ground under Section 12 (1) (a) of the Act
19. The lower appellate court has in Paragraph 20 of its judgment found it as a fact that there was a default in compliance with the second limb of Section 13(1) of the Act, inasmuch as the rent deposited on 26-10-1976, was deposited 2 days beyond the prescribed date for the deposit of the monthly rent but negatived the ground under Section 12 (1) (a) of the Act, holding that on reading paragraph 14 of the statement of Purshottam (P W. 2) along with Ex. D. 2, Ex. D. 2-A, Ex D-4, Ex. D5 Ex. D-7, Ex. D. 7-A, Ex. D-8 and Ex. D-9, it appeared that defendant tendered the arrears of rent; but plaintiff purposefully avoided.
20. The finding of the lower appellate court that there was a default in compliance with the second limb of Section 13 (1) of the Act was not assailed by the learned counsel for the parties. In other words, it is an admitted fact.
21. It is also an admitted position that on the question of tender, after the notice Ex. P. 5, the relevant documents are Ex. D.1, the registered postal cover in which as per defendant the cheque dated 24-10-1971 for Rs. 131/- of the Krisharam Baldeo Bank Ltd. along with the covering letter Ex. D. 2 was enclosed; the alleged tender of other amount vide Ex. D 4, Ex. D 5, Ex. 7 and Ex. D 8 and Ex. D.9 are not relevant.
22. I would now deal with the questions formulated by me, with regard to the ground under Section 12 (1) (a) of the Act, ad seriatim.
23. oN a clear reading of the statement of Purshottam (P. W. 2) especially paragraph 14 which has been referred to by the tower appellate court in paragraph 20 of the impugned judgment, it is clear that he denied the tender and refusal by him of Ex. D.1, Ex. D.3 (registered postal cover in which it is alleged, the cheque Ex. D.4 dated 24-11-1971 and the covering letter dated 23-11-1971 were enclosed, the registered cover Ex D6 dated 20-12-1971, allegedly containing covering letter Ex. D.7, dated 20-12-1971 and cheque Ex. D.7-A for Rs. 120/- dated 24-12-1971, the money order acknowledgment receipts Ex. D.8 and Ex. D.9. On a plain reading of the postal endorsements on the registered covers Ex. D.1, Ex. D 3 and Ex. D 6, it is apparent that there is no endorsement of refusal, the endorsements were that addressee was not available. Postman has also not been examined. Thus absolutely there is no evidence to support the conclusion of the lower appellate court about the alleged tender and refusal by the plaintiff. The trial court had rightly concluded that there was no tender or any rent by defendant No. 1 after the receipt of notice Ex. P. 5 by him.
24. In the light of the foregoing discussion question No. A has to be answered in the affirmative.
25. I now proceed to consider question No. (B). For the consideration of this question, it is advisable to set out herein-below Sections 12 (1) (a) and 24 (1) of the Act.
"12. Restriction on eviction of tenants--(1) "Notwithstanding anything to the contrary contained in any other law of 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:--
(a) that the tenant has neither paid nor tendered the whole of the arrears of the 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:--
26. The submission of the learned counsel for the plaintiff was that the plaintiff had alleged that there was an agreement between the parties for payment of monthly rent in advance and the defendant had in the written statement admitted this In view of this specific agreement between the parties, the rent for the month ending on 9-10-1971 as well as for the current month when notice Ex. P. 5 was given, was in arrears; the defendant neither paid nor tendered the rent within the statutory period of two months from the date of the receipt of this notice and also committed default in the compliance with second limb of Section 13 (1) of the Act; the ground under Section 12 (1) (a) of the Act was made out and the two courts below in the face of these facts committed a serious mistake of law in not upholding the ground under Section 12 (1) (a) of the Act for reasons which are unwarranted by law and facts on record.
27. Learned counsel for the defendant in his argument in counter submitted that according to Section 12 (1) (a) of the Act, crucial date for arrears was 16-10-1971, the date of notice Ex. P. 5 and on this date neither the rent for the month ending on 9-10-1971 nor for the current month had become due as rent. His argument was that a rent becomes due as rent only after the expiry of the month of tenancy. If the amount of rent, is paid in advance by the tenant either at his own choice or being payable in advance under the terms of the contract between the landlord and tenant, could not be the payment of rent; it would only be an amount to remain in deposit with the landlord or be a loan to the landlord to be adjusted towards the rent which would become due subsequently on the expiry of the month of tenancy. Then his submission was that Section 24 (1) of the Act in deviation from the general law; enlarges by 15 days the due date for the payment of rent. His submission was that ordinarily rent under the general law becomes due immediately after the expiry of the month of tenancy; but by virtue of Section 24 (1) of the Act, it would become due after the expiry of 15 days from the date of the expiry of the month of tenancy.
27A. As a sequel to these submissions, the argument of the learned counsel for the appellant was that on 16-10-1971 neither the rent for the month ending on 9-10-1971; nor for the current month had become due and an amount would be in arrears only when it is not paid on the date it was due and payable. He argued that the rent for the month which ended on 9-10-1971, was payable on 25-10-1971 and for the current month, that is, month which was to end on 9-11-1971 on 25-11-1971; the demand for the month which ended on 9-10-1971 and the month which commenced on 10-10-1971 vide notice Ex. P. 5 was unlawful; the rent for these months was not legally recoverable on that date. He also argued that a notice given for the demand of the rent for these months was not a notice for the demand of arrears; therefore, non-compliance within the statutory period of two months does not provide a ground under Section 12 (1) (a) of the Act.
28. On a dichotomy of Section 24(1) of the Act, it is obtainable that it contemplates two classes of cases. One is where the parties have by contract fixed the time for payment of rent and second is where there is no specific time fixed by the parties and it provides that in the first class of cases the tenant shall pay rent within the time fixed by contract and in the cases falling in the second class the tenant shall pay rent by the 15th day of the month next following the month for which it is payable. In other words in the case of cases of Class (i) the rent would become payable on the date for its payment fixed in the contract and in the cases of class (ii) the rent which is ordinarily payable on the expiry of the month of tenancy because of the statutory enlargement of period by Section 24 (1) of the Act, would be payable by the 15th day after the date of the expiry of the month of tenancy.
29. In the instant case, admitted case in the pleadings of the parties was that the monthly rent was payable in advance, that is, even before the commencement of the month of tenancy, Rent has not been defined in the Act. The definition of rent is obtainable from Section 105 of the Transfer of Property Act. According to this section 'rent' is the periodical payment in money or kind to the landlord for the enjoyment of a property held by the tenant from the landlord. It is also true that as it is a payment for the enjoyment of the property held on tenancy it would fall due on the expiry of the month of tenancy. In this view if the rent is paid in advance it would not be a payment as rent and it would either be a loan to the landlord or a deposit with the landlord deemed to have been made with an agreement that on the date when the rent becomes due it would be treated as payment in fulfilment of the obligation of the rent. But this general proposition cannot be true about the cases where there is specific agreement to pay the tent in advance. There is no prohibition either in the Transfer of Property Act or in this Act prohibiting a term for the payment of monthly rent in advance. On the contrary such a term is permissible. This is so in view of the expression in Section 105 of the Transfer of Property Act, "in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specific occasions, to the transferor by the transferee, and also in view of Section 6 (2) (b) of the Act, which also provides that it would riot be unlawful for a landlord to claim or receive the monthly rent in advance during the continuance of the tenancy. In this view of the legal position, it is clear that rent can be agreed to be paid in advance and when it is so agreed it would become due even though the month of tenancy had not expired. Section 24 (1) of the Act also as discussed in the preceding paragraph provides that the tenant shall pay rent within the time fixed by the contract. This view is not in any manner counter to the view of this Court in Munnalal Tiwari v. Laxminarayan Lohia, 1968 MPLJ 230. In this case, the point under consideration was not like the one in the instant case. In this case the question under consideration was, whether in view of Section 24 (1) of the Act, the Landlord's application before the Rent Controlling Authority for a direction to the tenant to deposit the arrears of rent was maintainable. While deciding that question and holding that landlord's application for compelling the tenant to deposit arrears of rent did not lie, under Section 24 of the Act, it was observed-
"What
Sub-section (1) of Section 24 does is to enlarge the period for payment of rent up to the 15th of the next month. The provision is for the benefit of the tenant by giving him an additional period of 15 days when there is no specific contract."
This observation cannot be held to mean that if there is a contract for the payment of the rent in advance still it would not be binding and the rent would become payable only after 15 days of expiry of the month.
30. In the above setting of facts and law it cannot be said that there was no ground for eviction under Section 12 (1) (a) of the Act.
31. Before parting with this point, I would like to deal with one more argument that was raised by the learned counsel for the defendant that in the plaint the plaintiff had only alleged the nonpayment of the rent within the statutory period after the receipt of the notice Ex. 5 by the defendant; but did not allege that rent was not tendered which it was necessary to aver for constituting the ground under Section 12 (1) (c) of the Act in view of the expression "tenant has neither paid nor tendered the whole of the arrears" in the section.
32. The argument raised by the learned counsel is too technical. The allegation in paragraph 6 of the plaint-
"Aur Notice Kal Anusar Rupaya Bhi Aaj Tak Chukaya Nahin Atah Vadi Ko Yeh Vad Niskashan Avashesh Kiraya Pani Kharch Ka Aakar Masne Profit Asdi Rabat Prastut Kama Bhag Hua"
impliedly contains this averment also.
33. In addition to this tendering was pleaded by the defendant and the parties had gone to the trial knowing full well that the question of tender was also at issue and as such no prejudice has been caused to the defendant by the alleged absence of the said averment. The pleadings have not to be construed with hypertechnicality especially in the above setting of the facts of this case. In this respect it would be pertinent to refer to the observation of their Lordships of the Supreme Court in S. B. Noronha v. Prem Kumari Khanna, 1980 MPRCJ 1 : (AIR 1980 SC 193).
'"Pleadings are not statutes and legalism is not verbalism. Commonsense should not be kept in cold storage when pleadings are construed. It is too plain for words that the petition for eviction referred to the lease between the parties which undoubtedly was in writing. The application, read as a whole, did imply that and we are clear that law should not be stultified by Courts by sanctifying little omissions as fatal flaws. The application for vacant possession suffered from no verbal lacunae and there was no need to amend at all. Parties win or lose on substantial questions, not technical tortures and Courts cannot be 'abettors.'
34. As a sequel to the above discussion I hold that question No. (B) to be answered in the negative. Accordingly it is held that Section 12 (1) (a) of the Act was attracted in the instant case and the ground thereunder has also been established. The defendant admittedly having failed to comply with second limb of Section 13 (1) of the Act is not entitled to the protection under Section 12 (3) of the Act.
35. In the light of my finding regarding the ground under Section 12 (1) (a) of the Act, as this ground alone is sufficient to maintain the decree, it is not necessary to go into the question of ground under Section 12 (1) (e) of the Act.
36. In the result, the appeal deserves to be dismissed and is accordingly dismissed. However, in view of the fact that as borne out from the record, the defendant is a tenant for the last 10 to 11 years is an Advocate by profession and looking to the scarcity of accommodation it may not at once be possible to find out a suitable accommodation and dislodging him immediately may cause inconvenience and suffering not only to him but to his clients, the litigants, I grant six months time to the appellant to vacate the premises.
37. In the facts and circumstances of the case I make DO order as to costs.