Holding

The tenant is a defaulter and not entitled to protection under Section 13(5); the landlord's bona‑fide requirement is determined by the landlord without extraneous considerations; the High Court's adverse remarks are expunged.

Summary

The respondent landlady sued the appellant tenant for eviction and recovery of rent arrears, invoking bona‑fide requirement under the Madhya Pradesh Accommodation Control Act, 1961. The trial court found a landlord‑tenant relationship, held the tenant in arrears and the landlady’s need bona‑fide, and decreed eviction. The first appellate court reversed, saying the tenant was not a defaulter because he had deposited rent in the appellate court and that the landlady’s need was not bona‑fide. The High Court set aside that decision, reinstating the trial court’s decree and holding the tenant a defaulter and the landlady’s requirement bona‑fide, while also making adverse remarks against the first appellate court’s presiding officer. The Supreme Court held that under Sections 13(1) and 13(5) of the Act the tenant must deposit arrears within the statutory period; having failed to do so, he was a defaulter and not entitled to protection, and that the landlord’s bona‑fide need is determined by the landlord without extraneous facts. The Court also expunged the High Court’s adverse remarks against the lower‑court officer and allowed the appeal and interlocutory application.

Issues considered

Whether the tenant qualifies as a defaulter under Section 13(1) of the Madhya Pradesh Accommodation Control Act and is entitled to protection under Section 13(5) when rent is deposited in appellate court outside the statutory period.
Whether the landlord's claim of bona‑fide residential requirement can be assessed by considering extraneous facts or is solely at the landlord's discretion.
Whether adverse remarks made by a High Court against a subordinate judicial officer can be expunged.

Legislation cited

Madhya Pradesh Accommodation Control Act, 1961s. 12, s. 13(1), s. 13(5)

Subjects

rent controlevictiondefault in rentbona fide requirementM.P. Accommodation Control Actjudicial restraintexpungement of remarkslandlord‑tenant law

Judgment

A R.C. TAMRAKARANDANR.
v.
NIDILEKHA

OCTOBER 16; 20o"l

B [SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]

Rent Control and Eviction :

M.P. Accommodation Control Act, 1961-Sections 12 and 13( 1) and
(5)-Default in payment of rent-Non-payment of rent arrears either prior to
c filing of suit or during its pendency-Payment of the same in the First Appellate
Court-Effect of-Held, tenant is defaulter since the arrears remained unpaid
during the pendency of the suit-Hence not entitled to protection under sub-
section (5) of Section 13.

Bona.fide requirement-Ground for eviction-Determination of-Held, !.1
D
in deciding bonafide need extraneous facts need not be taken into considera-
tion-Landlord is the best judge of his residential requirement. ·

Judicial restraint-Subordinate judiciary-Error in judgment-Adverse
remarks by High Court---'Held, not justified-Hence expunged.
E
Respondent-landlady filed a suit for ejectment and recovery of ar-
rears of rent on the ground of bona .fide requirement and non-payment of
rent. The tenant in his written submission though denied the title of the
respondent landlady, admitted the same in his evidence. Trial Court held
that relationship of tenant and landlady existed between the parties and
F hence the landlady had title over the premises; and that the tenant was
defaulter; and that. the landlady's requirement was bonll .fide. Thus the
Trial Court decreed the suit.

First Appellate Court held that the tenant could not be treated as
defaulter since he had deposited the rent in the ~ppellate court, and that
G
the need of the landlady was not bona fide as she could stay in the house of
her son.

In second appeal High Court held that the tenant.was defaulter; and
that the landlady could not be compelled to stay with her son. High Court
H made adverse remarks· against the first appellate court.
192
R.C. TAMRAKAR v. NIDI LEKHA 193
In appeal to this Court, the Presiding Officer of the First Appellate A
Court filed Interlocutory Application for expunging the remarks made by
the High Court.

Allowing the appeal and the Interlocutory Application, the Court.
B
HELD : 1.1. In view of Section 13(1) and (5) of M.P. Accommodation
Control Act, 1961, the benefit of sub-section (5) shall be available to a
tenant provided he tenders the arrears of rent or deposit it in the court
within one month of service of writ of notice or notice of appeal or any
other proceeding or within one month of the institution of the appeal or
any other proceeding by the tenant or within such further time as the court c
may on an application made to it allow in this behalf. [196-A]

In the instant case since the .tenant did not deposit the arrears of rent
either prior to filing of the suit or during its pendency before the trial
court, the finding of the High Court cannot be faulted in view of clear D
provision of sub-section (1) of Section 13 and, therefore, the tenant is not
entitled to get protection under sub-section (5). [196-B; 196-D]

1.2. High Court rightly set aside the finding of the first appellate
court holding that landlady could not be compelled to reside with her so.n.
E
While considering the bonafide need of the landlord under the Act, the
court need not take into consideration extraneous facts. It is for the land- .
lord to decide how and in what manner he should live and that he is the
best judge of his residential requirement. In deciding the question of the
bona fide requirement, it is unnecessary to make an endeavour as to how
else the landlord could have adjusted himself. [197-B; 196-H] F

2. Remarks made against the Presiding Officer of the First Appellate
Court by the High Court are expunged as these were uncalled for. If any
adverse entry has been recorded in the confidential report of the officer, it
shall be deleted and treated as washed off from the record. [199~A-B] G

Ishwari Prasad Mishrav. Mohd. Isa, [1963] 3 SCR 722; K.P. Tiww:i v. ,
State of M.P., [1994] Supp. 1 SCC 540; Brc!i Kishoi·e Thakur v. Union of India
and Ors., [1997] 4 SCC 65 and 'K' A Judicial Officer, [2001] 3 ~CC 54,
relied on.
H.
I
194 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2784of1997.

,. f.rom the Judgment and Order dated 30.1.97 of the Madhya Pradesh:
High Court in S.A. No. 291 of 1993.

WITH
B
I.A. No. 4.

Shiv· Sagar Tiwari for the Appellants.

K.M.K .. Nair, Ms. Rach.na Gµpta ,(Nf>) for the Respondynt.

C The Judgment of the Court was· delivered by

PHUKAN, J. This appeal by special leave arises from the judgment of
the High Court of Madhya Pradesh at Jabalpur dated 30th January, 1997 passed
in Second Appeal No. 291 of l 993: The appeal· is by the tenant.
D Facts .of the case are as follows :

The sole respondent-landlady filed a suit for ejectment and recovery of
arrears of rent and damages against the appellant-tenant. The grourids for
ejectment were bona.fide requirement for accommodation, non-payment of rent
E from 3.5.1985 to 31.7.1986 and also for renovation and alteration of the suit
'·
premise. as it was in the dilapidated condition. The tenant denied the title of
the landlady and that he was in the arrears of rent. The tenant also denied that
the suit premises was required for bona .fide accommodation of the respondent
and for renovation and alteration.
.
The suit was decreed by the Additional
. Civil
Judge. Chhindawara, but the decree· was set aside by the First Appellate Court.
F The second appeal was carried to the High Court and by the impugned judg-
ment the High Court allowed the appeal and restored the judgment of the Trial
Court. That is. how the parties are before us.

We have heard Mr. Shiv Sagar Tiwari; learned counsel for the appellant-
tenant and Mr. K.M.K. Nair learned counsel for the respondent-landlady.
G
From the judgment of the Trial Court, we find that the tenant admitted
in his evidence the fa~t of taking ·the suit premises on rent on also accepted the
respondent as his landlord. On these fac~s the Trial Court held that there was
relationship of landlord and tenant between the. parties. T~is finding has not
H b~en disturbed by the First Appellate Court and the High Court. .
R.C. TAMRAKAR v. NIDI LEKHA [PHUKAN, J.] 195
Regarding default in payment of rent it was averred that the tenant was A
in arrears of rent from May 3, 1985 to 3 lst of July, 1986 amounting to Rs. 1493
and the rent was Rs. 100 per month. The Trial Court from the evidence of the
tenant and his son held that, as they could not say who paid the rent and for
.how ma~y months, the tenant was in arrears of rent amounting to Rs .. 1493.
The First Appellate Court on the ground that the tenant deposited rent in the
Appellate Court, held that he could not be treated defaulter of rent.
B

Under clause (a) of sub-section ( 1) of Section 12 of M.P. Accoinmoda-
tion Control Act, 1961 (for short 'the Act'), if a tenant has neither paid nor
tendered the whole of the arrears of rent legally recoverable from him within
two months from date on which notice of demand for arrears of rent has been C
served on him by the landlord, eviction can be ordered. Admittedly, the tenant
· did not pay the arrears of rent after receipt of the notice.

Sub-sections (1) and (5) of Section 13 of the Act which are relevant for
our purpose and are quoted below :
D
"13(1). On a suit ,or any other proceeding being instituted by a landlord
on any of the grounds referred to in Section 12 or in any appeal or any
other proceeding by a tenant against any decree or order for his
eviction, the tenant shall, within one month of the service of writ of
summons or notice of appeal or of any other proceeding, or within one. E
month of institution of appeal or any other proceeding by the tenant,
as the case may be, or within such further time as the court may on an
application made to it allow in this behalf, deposit in the court or pay
to the landlord, an amount calculated at the rate of rent at which it was·
paid for the period for which the tenant may have made default
F
including the period subsequent thereto 'up to the end of the month.
Previous to that in which the deposit or payment is made; and shall
thereafter continue to deposit or pay, mo.nth by month by the 15th of
each succeeding month a sum equivalent to the rent at that rate till the
decision of the suit appeal or proceedings as the case may be.
G
13(5). If a tenant makes deposit or payment as required to sub-section
( 1), or sub-section (2) no decree or order shall be made by the Court
for the recovery of possession of the accommodation on the ground of
default in the payment of rent by the tenant, but tl~e Court may allow
such cost as it may deem fit to the landlord." H
196 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A Reading both the sub-sections together, we are of the opinion that the
benefit of sub-section (5) shall be available to a tenant provided he tenders the
.arrears of rent or deposit'it in the court within one month of service of'writ of
· notice or notice of appeal or any other proceeding or within one month of the
institution of the appeal or any other proceeding by the tenant or within such
further time as the court may on an application made to it allow in this behalf.
B
In the case in hand the tenant did not deposit the arrears of rent either prior
to filing of the suit or during its pendency before the Trial Court. In the First_
Appellate Court rent was deposited and it was not clear whether he continued
_to deposit the rent as per sub-section ( 1) of Section 13. The First Appellate
Court set aside the findings of defaulter on -the ground that the ·rent was
c deposited in the Appellate Court. The High Court was of opinion that after the
Trial Court passed the decree holding that the tenant was in the arrears of rent,
mere depositing the amount without filing an application for extension of time
for payment of all the arrears of rent due, the finding of the Appellate Court
that tenant was not a defaulter is not sustainable. The High Court further
D recorded that the First Appellate Court did not give any finding that entire
amount of arrears of rent was paid. This finding of the High Court cannot be
faulted in view of clear provision of sub-section (1) of Section 13 and, there-
fore, tenant is not entitled to get protection under sub-section (5).

Regarding bona fide requirement of the landlady, the Trial Court after
E ·· - appreciation of the evidence on record held that premises in question was
required by the landlady for bona fide occupation for residential purpose for
herself. The First Appellate Court set aside the finding on the ground that need
of the landlady was not bona fide as her son has constructed a house where
she could stay. Though the tenant left the suit premises on his transfer to a place
F called $ivani where he has been provided accommodation by his employer,
where he is living with his wife and he has also a house at Sivani, the First
Appellate Court erroneously took into consideration that the suit premises is
required for accommodation of his ailing grandmother and his son, who is
doing business in the suit premises. These are absolutely extraneous considera-
tion as while considering the bona fide need of the landlord under the Act, the
G
court need not take into consideration these facts.

Law is well settled that it is for the landlord to decide how and in what
manner he should live and that he is the best judge of his residential require-
ment. In deciding the question of the bona fide requirement, it is unnecesse!I)'
H to make an endeavour as to how else landlord could have adjusted himself.
R.C. TAMRAKAR v. NIDI LEKHA [Pl:IUKAN, J.] 197
Though the son of the landlady is doctor and has constructed his own A
house, the landlady wants to stay in the suit premises. It is not the case of the
tenant that landlady has any other suitable accommodation. Therefore, the
High Court rightly set aside the finding of the First Appellate Court holding
that landlady could not be compelled to reside with her son as her case was
that she wanted to stay by herself in the suit premises because of her health
B
condition and the climatic condition of that place suits her.

... · As the landlady has been able to make out a case for eviction under the
Act, the tenant is liable to be evicted.

I.A. No. 4
c
The Presiding Officer for the First Appellate Court viz., 3rd Additional
District Judge, Chhindawara, Sivani, Jabalpur who allowed the appeal of the
. tenant has filed the present application for expunging the remarks made against
him in the impugned judgment by the High Court.

Time and again this Court had deprecated the practice of passing unsa-
D
voury remarks against subordinate judicial officers by High Courts but unfor-
tunately the direction of this Court has not percolated down to High Courts.

As far as back in the year 1963 in lshwari Prasad Mishra v. Mohd. Isa,
[1963] 3 SC.R 722, this Court speaking through Gajendragadker, J. (as he then E
was) in the context of dealing with strictures passed by the High Court against
one of its subordinate judicial officers stressed the need to adopt utmost judicial
restraint against using strong language and imputation of corrupt motives
against lower judiciary because the Judge against whom imputations are made
has no remedy in law to vindicate his position. In K.P. Tiwari v. State of M.P.,
[1994] Supp. 1 SCC 540, this Court made the following observations in this F
context :

"The higher courts every day come across orders of the lower courts
which are not justified either in law or in fact and modify them or set
them aside. That is one of the functions of the superior courts. Our G
legal system acknowledges the fallibility of the Judges and hence
provides for appeals and revisions. A Judge tries to discharge his duties
to the best .of his capacity. While doing so, sometimes, he is likely to
err ....... it has also to be remembered that the lower judicial officers
mostly work under a charged atmosphere and are constantly under a
psychological pressure with all the contestants and their lawyers al- H
198 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A . most breathing down their necks - more correctly up to their nostrils.
They do not have the benefit of a detached atmosphere of the highe1
courts to think coolly and decide patiently. Every error, however, grobi·
it may look, should not, therefore, be attributed to improper motive."

We also extract below the observation of this Court in Braj Kishore
B Thakur V. Union of India and Ors., [1997] 4 sec 65.

"Judicial restraint is a virtue. A virtue which shall be concomitant of
every judicial disposition. It is an attribute of a Judge which he is
obliged to keep refurbished from time to time, particularly while
c dealing with matter before him whether in exercise of appellate or
revisional or other supervisory jurisdiction. Higher courts must remind
themselves constantly that higher tiers are provided in the judicial
hierarchy to set right errors which could possibly have crept in the
findings or orders of courts at the lower tiers. Such powers are certainly
not for belching diatribe at judicial personages in lower cadre. It is well
D
a
to remember the words of jurist that "a Judge who has not committed
any error is yet to be born."

No greater damage can be·caused to the administration of justice and
to the confidence of people in judicial institutions when Judges of
E higher courts publicly express lack of faith in the subordinate Judges.
It has been said, time and again, that respect for judiciary is not in
hands by using intemperate language and by casting aspersions against
lower judiciary. It is well to remember that a judicial officer against
whom aspersions are made in the judgment could not appear before
the higher court to defend his order. Judges of higher court must,
F
therefore, exercise greater judicial restraint and· adopt greater care
when they are tempted to employ strong terms against the lower
judiciary."

The High Courts should always remember while exercising the control
G over the courts subordinate thereto that 'the strength of power is not displayed
solely in cracking a whip on errors, mistakes or failures; the power should be
so wielded as to have propensity to prevent and to ensure exclusion of repeti-
tion if committed once innocently or unwittingly ........ The power to control is
not to be exercised solely by wielding a teacher's cane'. (Paragraph 15 of 'K'
H A Judicial Officer [2001] 3 SCC 54).
R.C. TAMRAKAR v. NIDI LEKHA [PHUKAN, J.] 199
In view of what has been said repeatedly by this Court regarding passing A
of adverse remarks against subordinate judicial officers by the High Court, we
expunge remarks made against the applicant by the High Court in the impunged

... judgment as these were uncalled for. It is unfortunate that the concerned
judicial officer had to approach the highest court of land spending considerable
time and money. If any adverse entry has been recorded in the confidential
B
report of the officer, it shall be deleted and treated as washed off from the
record. The application is allowed:

In the result we find merit in the present appeal and accordingly it is
allowed. Cost on the parties.

K.K.T. Appeal and I.A. allowed.