SAYEDA AKHTARversusABDUL AHAD

A                                SA VEDA AKHTAR
                                          v.
                                   ABDULAHAD

                                   JULY 18, 2003

B                      [V.N. KHARE, CJ. AND S.B. SINHA, J.]


          MP. Accommodation Control Act, 1961:

           Ss. l 2 and 13-(;ourt 's power to extend time for depositing arrears of
C   rent-Suit for eviction for default in payment ofrent and for nuisance-Decreed
    by trial court and decree affirmed by appellate court-High Court dismissed
    the suit holding that default committed by tenant deserved condonation and
    courts below should have given him further time to deposit arrears of rent-
    Held, although the court has the jurisdiction to extend the time for depositing
D   the rent both for the period during which the tenant had defaulted as well as
    the period subsequent thereto but therefor an application is to be made-The
    provision requiring an application to be made is indisputably necessary for
    the purpose of showing sufficient cause as lo why such deposit could not be
    made within the time granted by the court-The court does not extend time or
    condone the delay on mere sympathy-It will exercise its discretion judiciously
E   and on a finding of existence of sufficient cause-The court could not have
    entertained an application made on 5.2. 1990 for condonation of delay in
    paymem of rent for the month of November, l 985 and the months of May and
    June, 1988-Besides, the landlord sought for a decree of eviction also on
    ground of commission of nuisance by the tenant, and though a specific issue
F   was not formed by the trial court in this regard, record clearly demonstrates
    that parties were aware ofii and submissions were made thereon-The appellate
    court formulated a specific question regarding nuisance and held that evidence
    on record proved that tenant had created nuisance-High Court did not advert
    to this question at all-High Court in second appeal could not have without
    sufficient and just reason interfered with the concurrent findings of fact
G   recorded by the courts below-Judgment of High Court set aside and decree
    of trial court restored-Practice and Procedure-Non-framing of issue-
    Ef!ect of

         Nasiruddin and Ors. v. Sitra Ram Agarwal, 120031 2 SeC 577 and
    Shyamcharan Sharma v. Dharamdas, 1198012 sec 151, relied on.
H                                        612
                      SA YEDA AKHTAR v. ABDUL AHAD                            613
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5010 of2003.                  A
     From the Judgment and Order dated 31.1.2002 of the Madhya Pradesh
High Court in S.A. No. 123 of 1990.

         Anis Ahmed Khan for the Appellant.
                                                                                      B
         B.S. Banthia for the Respondent.

         The following Order of the Court was delivered :

         Leave granted.

         Heard counsel for the parties.
                                                                                      c
         With the consent of the parties, we dispose of this appeal finally at this
stage.

       The appellant herein is the landlord of premises bearing No. 505, Ward D
No.15 Arif Nagar, Bhopal whereas the respondent herein is the tenant. The
landlord filed a suit for eviction on the grounds of default in payment of rent
as well as nuisance. Admittedly, the tenant neither deposited the rent within
the stipulated period nor any application was moved for extension of time to
deposit the same. Consequently, the trial Court decreed the suit and passed
an order of eviction. The first appellate Court affirmed trial Court's decree. E
However, the High Court allowed the second appeal an reverses the decree.
Consequently, the suit for eviction stood dismissed. The High Court was of
the view that default committed by the tenant deserved condonation and the
Court below ought to have given further time to deposit the arrears of rent.
It is against the said judgment and order that the appellant-landlord is in F
appeal before us.

      Section 13 of the M.P. Accommodation Control Act, 1961 reads as
under:

          "13.(1) On a suit or proceeding being instituted by the landlord on
          any of the grounds referred to in Section I2, the tenant shall, within      G
          one month of the service of the writ of summons on him or within
          such further time as the Court may, on an application made to it, allow
          in this behalf, deposit in the Court to 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 including the period                 H
    614                     SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A           subsequent thereto up to the end of the month previous to that in
            which the deposit or payment is made shall thereafter continue to
            deposit or pay, month by month, by the 15th of each succeeding
            month a sum equivalent to the rent at that rate.

            X«    xxxxxx
B
            (6) If a 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."

          A bare perusal of the aforementioned provision would clearly go to
C show that although the court has the jurisdiction to extend the time for
    depositing the rent both for the period during which the tenant had defaulted
    as well as the period subsequent thereto but therefor an application is to be
    made. The provision requiring an application to be made is indisputably
    necessary for the purpose of showing sufficient cause as to why such
    deposit could not be made within the time granted by the Court. The court
D   does not extend time or condone the delay on mere sympathy. It will exercise
    its discretion judicially and on a finding of existence of sufficient cause.

          In Nasiruddin and Ors. v. Sitra Ram Agarwal, [2003] 2 SCC 577 this
    Court noticed the said provision as well as the decision in Shyameharan
E   Sharma v." Dharamdas, [1980] 2 sec 151 and observed that the court has
    been conferred power to extend the time for deposit of rent but on an
    application made to it.

          ·The finding of the court of appeal in this behalf is:

            "The appellant has not moved any application before the court below
F           for condoming the delay in depositing of rent. By this Court the
            relevant application had already been dismissed. Therefore, the
            appellant is not entitled to the protection of Section 12(i)(a), 12(iii)
            and 13(v) as has been laid down in 1989 M.P.R.C.J. 155."

G         The High Court in its impugned judgment did not point out as to how
    the court of appeal committed an error of records in arriving at the said
    finding. Admittedly, there had been two defaults i.e. rent for the month of
    November 1985 and rents for the months of May and June 1988. The High
    Court purported to have recorded that the appellant had applied for
    condonation of delay in payment of rent on 5.2.1990 in relation to default to
H   deposit rent for the month of November 1985 and for the months of May ar.d
                       SA YEDA AKHTAR v. ABDUL AHAD                           615
June 1988. An application for condonation of delay could not have been                A
entertained on 5.2.1990 for commission of default in depositing the rent. We,
therefore, are of the opinion that the High Court was not correct in interferring
with the findings of fact arrived at by the first appellate court.

       Furthermore, as indicated herein before, the plaintiff sought for a decree
for eviction against the defendant also on the ground of commission of                B
nuisance. It is true that the trial court did not frame any specific issue therefor
but a bare perusal of the judgment passed by the learned trial court will
clearly demonstrate that the parries were aware thereabout and not only
adduced evidence in that behalf but also advanced their respective submissions
in relation thereto. The court of appeal formulate two specific questions: for        C
determination of the appeal. One of them being:

        "Whether the appellant had created nuisance in the premises in
        question"?

        It was held:                                                                  D
        "On the point of nuisance, though, no issue was framed by the lower
        court yet it is clear on the basis of relevant pleadings and evidence
        produced that the parties were well familiar with the existence of the
        said issues. Under the circumstances, in face of the want of framing
        of issues, the prejudice was not caused nor the proceedings were              E
        vitiated, it is not proper to remand the case back in view of the
        decision of the Supreme Court reported as A.LR. 1963 SC 884."

      Thereafter the court of appeal considered the pleading of the parties as
also the materials brought on record by the parties to the suit on the said F
issue and held:

        "The evidence produced by the respondent proves that the appellant
        had created nuisance because quarrelling falls under the mischief of
        nuisance (AIR 1954 Madras 514.)"

      In its impugned judgment, the High Court did not advert to the said G
question at all. It set aside the aforementioned findings purported to be on
the ground that no is~ued was framed by the trial court on the point of
nuisance. The High Court in the second appeal could not have without
sufficient and just reason interfered with the concurrent findings of fact of
the courts below. We are, therefore of the opinion that the judgment of the H
    616                   SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A High Court cannot be sustained.
         In view of the matter, the appeal succeeds and is allowed. The judgment
    under challenge is set aside and the decree of the trial Court is restored.

          There shall be no order as to costs.
B
    RP.                                                        Appeal allowed.