Heera Traders vs Kamla Jain

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 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 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 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 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 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 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 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 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 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’, 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.

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 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. 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 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 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). Once we proceed on the basis that with the Decree of Eviction being passed, the erstwhile tenant becomes an unauthorised occupant and he makes himself liable to pay mesne profits for his continued occupation, such an erstwhile tenant can, indeed, be called upon to pay mesne profits. Undoubtedly, there is power with the Appellate Court, in this regard.We have, no doubt, noticed the view taken by the larger Bench of the High Court (which, in fact, paved the way for the substitution of Section 13 in the year 1983) that the Court, after finding that Section 13, with which it was concerned, did not contemplate any duty on the part of the tenant to deposit the agreed rent, in an appeal filed by him, did observe that in such a scenario, it will be open to the landlord to execute the Decree and if the tenant files an application under Order XLI Rule 5 of the CPC, the tenant can be asked to deposit the rent. No doubt, the legislative intervention in 1983 through substitution of Section 13, may have been inspired by the judicial exposition and, therefore, one of the principles of interpretation being that the Legislature must be treated as having in mind the law as interpreted by the Court to be implemented, thus, it could be urged that when an application is filed under Order XLI Rule 5, even after the substitution of Section 13, when the tenant is called upon to deposit the agreed rent, then, even in the matter of imposing condition under Order XLI Rule 5, the tenant cannot be worse off than when Section 13 was in its earlier avatar. In other words, with the deposit of the agreed rent, there would be no occasion to deposit any further amount, even under Order XLI Rule 5. We must, however, bear in mind the fact that the law, as has been declared in Atma Ram (supra), and as has been followed in Supermax International (supra), in the manner already referred to. That is, 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. This has the inevitable consequence that during such interregnum, the erstwhile tenant, being in the position of an unauthorised occupant, he becomes liable to pay mesne profits. Once this position is clear, then, the necessary corollary is, even after the substitution of Section 13, it 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. This position is also better understood in the light of the plight of the landlords, who are forced to wait for long, the realisation of the fruits of the Decree for Eviction, which they have obtained. In fact, this aspect, as to the entitlement of the landlord for an amount in excess of the agreed rent, in the light of the Decree of Eviction, as such, was not considered by the larger Bench of the High Court. At any rate, in the light of the Judgments of this Court, there cannot be any dispute about the principle that upon a Decree of Eviction being passed, the erstwhile tenant becomes an unauthorised occupant and remains one thereafter during the entire proceedings. The fact that there is power to fix standard rent cannot affect this position. In fact, the respondent would point out that after the eviction is ordered even the power to fix standard rent ceases as the tenancy comes to an end. [Paras 59-61][345G-H; 346-A-H; 347-A-D]

1.14 It is undoubtedly true that the existence of power under Order XLI Rule 5 of the CPC, is not to be confused with the exercise of its power by an Appellate Court. That there is power with the Appellate Court, may not enable it to Order any unreasonable amount or reach a windfall to the landlord. The power is to be exercised on a careful consideration of the facts of each case. It will include the quantum of agreed rent, which the tenant is paying under Section 13 of the Act. It will consider whether the said sum is the result of any fixation of standard rent. If so, what is the point of time, at which, the agreed rent was arrived at, the nature of the premises and all other relevant facts. It may include a case where the Appellate Court, on a perusal of the impugned Judgment, is convinced, prima facie, no doubt, that the Decree for Eviction is palpably insupportable, in which case, it may grant a stay, without calling upon the tenant to pay any sum in excess of amount fixed in Section 13 of the Act.We are unable to accept the appellants case that Section 13 of the Act, being a special law, the power under Order XLI Rule 5, cannot be exercised to direct deposit or payment of mesne profits. Compliance with Section 13 by the appellants, does not, as found by us, 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 Section 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.The upshot of the above discussion is that we reject the contention of the appellants that Section 13 of the Act will detract from the principle in Atma Ram (supra) and Supermax International (supra) being available to the cases under the Act. [Paras 62-64][347-E-H; 348-A-C]

1.15 Coming to the facts, the rent being paid for 100 square feet of non-residential accommodation by one of the appellants is Rs.622/-, fixed in 1975. In the other case, the rent canvassed by the appellant, as being the agreed rent, was a monthly rent of Rs.847/-, fixed in the year 1975. The premises in question is also non- residential and it consists of 150 square feet. There is no reference to the rent beingfixed in proceedings for fixing the standard rent. The Suit was filed in the year 2009. The Decree for Eviction was passed in the year 2013. The First Appellate Court dismissed the appeal filed by the appellants on 25.03.2014. The Second Appeal was filed in the year 2014. The impugned Orders came to be passed on 17.03.2020 and 25.08.2021 at the stage of second appeal when two courts have found against the appellants. The amount has been fixed at Rs.18,000/- per month. The amount has been fixed on the basis of the Report submitted by the Rent Controlling Authority, who was asked to report regarding the market rate of the accommodation in question. The complaint of the appellant is that the Rent Controlling Authority has tendered its Report and,while doing so, adequate opportunity was not provided and the materials placed were not considered and that the amount is unreasonable. It is said to be based only on the Panchnama prepared by the Revenue Officer. The High Court has found that the premises are located in a famous commercial place and the rent of Rs.847/- per month was fixed in the year 1975. We do not think that the appellants should be permitted to challenge the quantum, once we have answered the legal issues flowing from Section 13, against the appellants. It would appear from the written submission that the appellants have deposited certain sums in execution of the orders. The appellants will be entitled to adjust the said amount in complying with the impugned orders. The amount of Rs.18000/- will subsume the amount paid/payable under Section 13 of the Act.Thus, in the facts of this case, we would think that the direction to pay the entire amount, may require modification. Equally, we are of the view that some time must be granted to deposit the amount. [Paras 65, 66 and 68][348-C-H; 349-E-F]

State of Maharashtra v. M/s. Super Max International Pvt. Ltd. (2009) 9 SCC 772 : [2009] 13 SCR 801 – relied on.

Shrimati Chander Kali Bai and others v. Shri Jagdish Singh Thakur and another (1977) 4 SCC 402 : [1978]

1 SCR 625; Shyamcharan Sharma v. Dharamdas (1980)

2 SCC 151 : [1980] 2 SCR 334; M/s. Frick India Ltd. v. Union of india and others 1990 (1) SCC 400 : [1989 ] 2 Suppl. SCR 570; Pushpa Devi and Others v. Milkhi Ram (Dead) by his Lrs. 1990 (2) SCC 134 : [1990]

1 SCR 278; Jamnalal and others v. Radheshyam (2000)

4 SCC 380 : [2000] 3 SCR 135; Satyawati Sharma (D) by Lrs. v. Union of India and another (2008) 5 SCC

287 : [2008] 6 SCR 566 – referred to.

Mankunwar Bai and others v. Sunderlal Jain AIR 1978 MP 165 / 1979 ILR MP 676; S.S. Harishchandra Jain and others v. Dr. Captain Indersingh Bedi AIR 1977 MP 1991 – referred to.