JAGADISH KAPOOR Vs. NEW EDUCATION SOCIETY
LAWS(MPH)-1967-8-3
HIGH COURT OF MADHYA PRADESH
Decided on August 26,1967

JAGADISH KAPOOR Appellant
VERSUS
NEW EDUCATION SOCIETY THROUGH DIRECTOR AND SECY. K.L. PANDEY Respondents

JUDGEMENT

- (1.) THIS revision petition has come up before us for hearing and disposal on a reference made by one of us because of conflicting views expressed by this Court in some decisions on the question whether the provisions of Section 13 (6) of the madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as the Act) with regard to striking out of the defence are mandatory or whether they give discretion to the Court in the matter of strik-ing out of the defence.
(2.) THE petitioner-tenant's defence was struck out by the Civil Judge, Class II, jabalpur, on his failure to deposit the arrears of rent within the specified time as required by Section 13 of the Act. It is contended on behalf of the petitioner that the provisions of Section 13 (6) of the Act are not mandatory and even when a tenant has failed to deposit or pay any amount as required by Section 13, the court has discretion to decide whether his defence against eviction should be struck out, and that the learned Civil Judge struck out the defence without applying his mind to the question whether in the facts and circumstances of the case the penalty of striking out of the defence should be imposed on him, that is. the petitioner.
(3.) IN Harnamsingh v. Babulal, Civil Revn No. 60 of 1964 D/- 28-4-1964=1964 mplj (NC) No. 123 and Chitra Kumar Tiwari v. Gangaram, S. A. No. 864 of 1965 d/-17-1-1966=1966 MPLJ (NC) No. 178 Shiv Dayal J. has taken the view that the provisions contained in Section 13 (6) of the Act regarding striking out of the defence are directory and not mandatory One of us (Tare J.) expressed the same view in Babu Bhai v. Kripashankar, S. C. R. No 831 of 1965 D/-20-8-1966 = 1966 jab LJ (S. N.) No. 96 Krishnan J. also first held in Modilal v. Laxmichand, S. A. No. 293 of 1965 D/- 19-11-1965=1966 Jab LJ (SN) No. 71 that Section 13 (6) was a penal provision and gave to the Court discretionary power in the matter of striking out of the defence, and that in appropriate cases the Court could refuse to visit upon the defendant this penalty for nonpayment or non-deposit. Krishnan J. , however took a different view in Laxmi Kumar Baori v Shantilal, C. R. No. 44 of 1966 D/-2-12-1966 (M. P. ). In Udhavrao v Shivaji Rao, C. R. No. 218 of 1965 D/8-4-1966 (M. P.) Golvalkar I held that the provisions of S 13 (6) were mandatory and gave no discretion to the Court in the matter of striking out of the defence. Bhargava J was also inclined to think in Babu Sunderlal v. Ram-shankar, C R. No. 170 of 1965 D/- 31-8-1065 (M. P.) that Section 13 (6) was mandatory So also in swarnakar Sangh v. Trilok Chand, S. A. No. 218 of 1965 D/- 18-8-1966 (M. P.)Suraj-bhan J. said that Section 13 (6) was mandatory.;


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