U.N. Bhachawat, J.

1. This is plaintiffs appeal against the judgment dated 31-1-1968 in Civil Appeal No. 202- A/66 by the Additional District Judge, Vidisha, whereby he reversed the judgment of the Civil Judge, Class II, Vidisha dated 9-11-1966 in Civil Original Suit No. 89-A/65 and dismissed the suit of the plaintiff appellant against the defendant-respondent for ejectment and arrears of rent.

2. The short facts giving rise to this appeal are these: The defendant respondent was inducted as a tenant in the suit premises at the rent of Rs.18 per month on 15-4-1959 by the plaintiff-appellant. On 15-4-1965, the plaintiff filed a suit for ejectment on the ground under section 12(1)(a) of the M P. Accommodation Control Act, 1961 (hereinafter referred to as the Act) that the defendant was in arrears of rent since 1-6-1962 which he failed and neglected to pay within two months the arrears of rent from the service of the composite notice (Ex. P-3) of demand of arrears of rent and determining the tenancy of the defendant. The defendant, while controverting the plaint allegations, inter alia, contended that on 22-6-1964, he had cleared off all the arrears of rent upto 16-6-1964 and nothing was due and payable by him to the plaintiff towards the rent till 16-6-1964. The trial Court found that the defendant had committed a default in the payment of the rent and he was in arrears of rent as contended by the plaintiff and having found the ground under section 12(1)(a) proved, decreed the suit. On appeal by the defendant, the lower appellate Court found that the plaintiff has failed to prove that there were arrears of rent against the defendant and on that ground, allowed the appeal and dismissed the suit of the plaintiff.

3. During the course of the arguments, a controversy has arisen that even if the defendant is found to be in arrears, as contended by the plaintiff, no order under sub-section (2) of section 13 of the Act having been passed regarding deposit towards the arrears of rent as claimed in the suit, the suit could not be decreed. The argument of the learned counsel for the plaintiff-appellant was that there are two limbs of section 13(1) of the Act: (i) regarding the deposit of the arrears of rent within one month of the service of the writ of summons or within the period extended by the Court and (ii) the deposit of the monthly rent month by month by the 15th of each succeeding month during the pendency of the suit and similarly, under sub-section (2) of section 13, the order contemplated is only with regard to the dispute which may be either about the arrears of rent or about the rate or it may be both. His argument was that in the instant case as the defendant had raised the dispute, by pleading payment, only with regard to the arrears of rent and not with regard to the rate of rent, it was obligatory on the defendant even in absence of an order under sub-section (2) of section 13 of the Act to have continued to deposit the monthly rent month by month by the 15th of every succeeding month and merely on account of the dispute with regard to the arrears of rent, the operation of the whole of section 13(1) of the Act was not arrested.

4. The contention of the learned counsel for the respondent was that the moment, a dispute is raised may it relate to the arrears of rent and there may be no dispute with regard to the rate of rent, in view of the Full Bench decision in Chhogalal v. Idol of Bhagwan Shri Satyanarayan 1975 M P L J 657, the operation of the whole of section 13(1) of the Act is arrested.

5. On the aforesaid question, i. e. as to what is the effect of the dispute which is only with regard to the arrears of rent and not with regard to the rate on the operation of section 13(1) of the Act, the learned counsel for the parties have pointed out two Single Bench decisions of this Court wherein there is an apparent conflict on this question:

(i) Jhammanlal v. Mahila Mintibai Civil Second Appeal No. 179 of 1970, decided on 5-8-1976, by Hon. Vyas J, and

(ii) Dewabai v. Bhamarlal and others 1977 M P L J 446 (Second Appeal No. 284 of 1969, decided on 30-9-1976) by Hon. Oza J.

Hon. Vyas J., in Jhammanlal v. Mahila Mintibai (supra) has taken a view relying on the Full Bench decision (supra) that when a dispute, may it be with regard to the arrears of rent, the operation of the whole of section 13(1) of the Act is arrested. Hon. Oza J., has, in Dewabai v. Bhamarlal and Others (supra) taken a view that only of that part of section 13(1) of the Act operation would be arrested regarding which there is a dispute and for the part for which there is no dispute, compliance by the tenant is mandatory. The relevant portions of the aforesaid judgment are reproduced hereinbelow to indicate the apparent conflict:

Hon. Vyas J.,:

4. In the written statement, the defendant denied the arrears as claimed by the plaintiff".

8. It is not in dispute that there was a previous suit by the plaintiff against the defendant for ejectment and in that suit a similar claim for nonpayment of rent and genuine requirement of the suit-accommodation was made by the plaintiff, but was dismissed. In the instant suit, the plaintiff claimed Rs. 3,060 on account of rent from 17-3-1951 to 16-11-1966 at the rate of Rs. 45 P.M. and Rs. 102 on account of water charges at the rate of Rs. 1.50 P.M. Admittedly, an amount of Rs. 1,674 was deposited as rent in the previous suit, but in this suit the plaintiff gave a credit for Rs. 1,506 only as according to her an amount of Rs. 168, which she had paid on account of court-fees for mesne-profits in the previous suit, was liable to be appropriated by her that amount. Thus according to her, a sum of Rs. 1,506 was due from the defendant, out of which the defendant paid only Rs. 1,241.80 by money-order leaving a balance of Rs. 414.20 the plaintiff further claimed Rs. 93 on account of rent from 17-11-1966 to 16-1-67 and Rs. 115.25 p. on account of mesne-profits. According to the defendant, the plaintiff was not entitled to appropriate the amount spent by her on court-fees and the costs of the previous suit and was also liable to give credit to the defendant for the excess payment made by him in the previous suit on account of rent for the period subsequent to the decree dismissing the suit in the previous case.

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11. In a case where a dispute of the nature raised in this case is before the Court in a suit for ejectment what procedure the Court should follow is indicated in the Full Bench decision of this Court in Chhogalal Jankilal v. Idol of Bhagwan Shri Satyanarayan (supra) where it has been held as under:

The operation of sub-section (1) of section 13, M.P. Accommodation Control Act, 1961, is arrested when a dispute as is referred to in sub-section (2) of section 13 of the M.P. Accommodation Control Act is raised by the defendant tenant in his written statement in the suit for the eviction filed by the landlord on the ground of failure to pay the arrears of rent after notice and it is not necessary that he should make an application inviting the attention of the Court to the specific dispute and ask the Court to fix provisional rent."

12. In the light of this decision, it has to be said that because of the dispute raised by the defendant and there being no agreement between the parties with regard to the exact amount payable by the defendant on the expiry of the period of two months after the service of notice of demand (Ex. P-15), as also on the expiry of the period specified in sub-section (1) of section 13, it was the duty of the trial Court to act under sub-section (2) of section 13 of the Act and pass an order fixing the reasonable provisional rent in relation to the suit accommodation and calling upon the defendant to deposit or pay the same in accordance with the provisions of sub-section (1) till the decision of the suit, or appeal, if any. It appears that both the parties proceeded with the trial of the suit on the basis of the averments made in their pleadings and sought a decision from the Court on the question of nonpayment of arrears of rent. No doubt, both the learned lower Courts decided this question in favour of the plaintiff, but that was without complying with the provisions of sub-section (2) of section 13 of the Act, referred to above.

13. In the Full Bench case, referred to above, it has been held that if in a case a dispute being raised by the defendant the Court does not pass an order for fixation of reasonable provisional rent due from the defendant, then the provisions of section 13(1) of the Act are arrested and the defendant cannot be said to have committed any default in complying with the said provisions This re exactly what has happened in this case. The fact that both the learned Courts below examined the merits of the claim made by the plaintiff and denied by the defendant and decided it in favour of the plaintiff but it cannot be disputed that when the operation of section 13(1) is itself arrested and its provisions cannot be applied with penal consequences against the defendant, any decree passed by the trial Court for noncompliance of these provisions cannot be maintained.

Hon. Oza J.

4. Learned counsel for the respondents, however, contended that the Full Bench decision in Chhogalal v. Idol of Bhagwan Shri Satya Narain, only lays down that where there is a dispute as contemplated under section 13(2) of the Act, it is the duty of the Court to decide the provisional rent or the quantum of arrears of rent. In the present case, the only dispute was regarding the quantum of arrears as according to the defendant he had adjusted the payment of these arrears in certain account of credit for supply of goods to the respondents. But there was no dispute regarding the monthly rent and therefore even if the argument of learned counsel for the appellants is accepted, the appellants could only be saved from the effect of not depositing the arrears of rent within one month from the service of the writ of summons; but there is nothing to justify their non-depositing of rent every month and that itself could be sufficient to maintain the decree for eviction. Learned counsel also contended that in fact it was not a case of dispute about the quantum of arrears but the stand taken by the defendant appellants was that the amount has been paid; and therefore the provisions of section 13(2) of the Act will not be attracted. Learned counsel for the appellants contended that if the Court has failed in its duty to fix provisionally the quantum of arrears of rent under section 13(2) of the Full Bench decision lays down that the provisions contained in sub-section (1) of section 13 are suspended and in that view of the matter the appellants were not even bound to deposit monthly rent although there was no dispute regarding monthly rent. In support of his contention learned counsel referred to an unreported decision in Jhammanlal v. Mahila Mintibai.

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6. The Full Bench decision to which reference was made by learned counsel for the appellants arose out of a reference to the Division Bench by a Single Judge. The question referred to the Division Bench was:

Whether the operation of section 13(1) of the Madhya Pradesh Accommodation Control Act, 1961 is arrested so far as the deposit of rent according to it is concerned and it remains in suspense until the Court fixes a provisional rent since when the dispute is raised by the defendant-tenant in his written statement, or it would be so since when the defendant tenant makes an application inviting the attention of the Court to the specific dispute and asks the Courts to fix the provisional rent

The Division Bench in turn felt that as it requires reconsideration of two Division Bench decisions of this Court, it should be referred to a larger Bench. Consequently, the matter was referred to the Full Bench and the Full Bench answered the question in these terms:

The operation of sub-section (1) of section 13 of the Madhya Pradesh Accommodation Control Act, 1961 is arrested when a dispute as is referred to in sub-section (2) is raised by the defendant tenant in his written statement and it is not necessary that he should make an application inviting the attention of the Court to the specific dispute and asking the Court to fix provisional rent.

The learned Judges of the Full Bench felt that the real question which went before them for decision was that when the tenant raises a dispute as contemplated under sub-section (2) of section 13, whether it is necessary for him to make a further application to invite the Court to pass a provisional order. Their Lordships in this decision observed:

The question referred to us thus rightly assumes that the operation of sub-section (1) of section 13 is arrested and this provision remains in suspense when a dispute is raised by the tenant under sub-section (2), and that the obligation to deposit rent remains so suspended until the Court fixes the provisional rent and the tenant is not in default if no provisional rent is fixed by the Court. The point that we are required to decide is whether it is sufficient for the tenant to raise the dispute in his written-statement or whether he must make an application inviting the attention of the Court to the specific dispute and ask the Court to fix the provisional rent.

It is therefore apparent that although the question which was referred to the Full Bench quoted above talks of suspension of the operation of sub-section (1) in absence of an order under sub-section (2) of section 13, but the real question which was before the Full Bench was as to whether it is the duty of the Court to pass an order under section 13(2) or it is necessary for the tenant defendant to make an application inviting the Court to pass an order.

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8. sub-section (2) of section 13 talks of any dispute as to the amount of rent payable by the tenant. and it is now not in dispute that such a dispute could be, (i) a dispute about the amount of arrears payable, or (ii) a dispute about the quantum of monthly rent. It cannot be disputed that if there is a dispute about the quantum of monthly rent, the dispute about the quantum of arrears payable would be related to the amount of monthly rent. But there may be cases where there is no dispute about the monthly rent, but still the tenant may dispute that he is not in arrears, or, by saying that he has paid off the arrears, as in the present case. The question, therefore, that arises in the present appeal is that if the quantum of monthly rent is not in dispute, could it be held that even if there is a dispute about the quantum of arrears, still the operation of the second pan of section 13(1) also remain suspended about which there is no dispute at all It appears that the decision to which learned counsel for the appellants had made a reference Jhammanlal v. Mahila Mintibai (supra) has not gone in detail in this aspect of the matter. It appears that the Full Bench Judgment has been understood to mean that if there is any dispute under sub-section (2) of section 13, then the operation of section 13(1) automatically is suspended.

9. As discussed earlier, this aspect of the matter, that section 13(1) itself is in two parts and the dispute referable under section 13(2) may be referable to either of the parts of section 13(1) and whether in all cases the operation of section 13(1) will be suspended, was not before the Full Bench As pointed out earlier, what the Full Bench laid down was that it was incumbent on the Court itself to pass an order under section 13(2) and ii was not necessary for the tenant-defendant to make an application inviting a decision on that question. In this view of the matter, therefore, in my opinion, the Full Bench decision does not come to the rescue of the appellants as admittedly, there was no dispute about the monthly rent and therefore the only dispute which was raised was that the tenant had paid all the arrears. The dispute, if at all could be said to be a dispute about the quantum of arrears payable and even if the Court below did not pass an order as contemplated under section 13(2) of the Act, still the appellants could not be absolved of the responsibility of depositing rent every month about which there was no dispute.

6. In view of the apparent conflict in the aforesaid judgments and as consideration of section 13(1) and 13(2) of the Act is involved in the present case, according to Chapter 1, Rule 9 of the High Court Rules, the following questions are referred to the Honble the Chief Justice with the recommendation that the matter be placed before a Larger Bench.

(1) "When there is no dispute with regard to the rate of rent and the dispute is only with regard to the arrears of rent whether on such a dispute, till the Court passes an order under sub-section (2) of section 13 of the M.P. Accommodation Control Act, 1961, the operation of whole of sub-section (1) of section 13 thereof would be arrested or only of that part for which there is a dispute would be arrested. To be more specific, whether in a case where the defendant tenant disputes only the arrears of rent and does not dispute the rate of rent, is he absolved from the liability of depositing the monthly rent month by month by the 15th of each succeeding month till no order under sub-section (2) of section 13 of the M.P. Accommodation Control Act, 1961 is made

(2) Whether the order contemplated under sub-section (2) of section 13 of the M.P. Accommodation Control Act, 1961 is the one with regard to that part of deposit under section 13(1) thereof for which there is a dispute or with regard to the whole of it .

OPINION

SHIV DAYAL C.J.

The following questions have been referred to us for opinion:--

(1) When there is no dispute with regard to the rate of rent and the dispute is only with regard to the arrears of rent, whether on such a dispute, till the Court passes an order under sub-section (2) of section 13 of the M.P. Accommodation Control Act, 1961 the operation of whole of sub-section (1) of section 13 thereof would be arrested or only of that part for which there is a dispute would be arrested. To be more specific, whether in a case where the defendant tenant disputes only the arrears of rent and does not dispute the rate of rent, is he absolved from the liability of depositing the monthly rent month by month by the 15th of each succeeding month till no order under sub-section (2) of section 13 of the M.P. Accommodation Control Act, 1961, is made

(2) Whether the order contemplated under sub-section (2) of section 13 of the M.P. Accommodation Control Act, 1951, is the one with regard to that part of deposit under section 13(1) thereof for which there is a dispute or with regard to the whole of it

2. Section 13 of the M.P. Accommodation Control Act, 1961, (hereinafter called the Act) has been the subject of keen controversy on different aspects of it. Section 13 has two parts. Under the first part, the tenant is required to deposit all arrears of rent, i. e., upto the date of the institution of the suit and this deposit is to be made within one month of the service of the writ of summons on the defendant. Time of one month can be extended by the Court to any length.

3. Under the second part of section 13, the tenant has to go on depositing rent at the agreed date.

4. Broadly speaking, two kinds of dispute arise under section 13: (i) When the tenant disputes the rate of rent and, therefore, the amount of rent to be deposited by him as arrears of rent and also the amount which he is regularly required to deposit under the second part of section 13 (i); and (ii) when the tenant disputes that the amount claimed by the landlord is excessive and not due.

5. When a dispute of either category arises, the Court has to fix a provisional reasonable rent which the tenant is required to deposit until the final judgment in the suit in which the dispute about the amount of rent or the rate of rent, as the case may be, is finally adjudicated upon.

6. It is settled law that every kind of dispute about the rate of rent is covered by section 13(2) of the Act. See Firm Ganeshram Harvilas v. Ramchandra : 1975 M P L J 657, also see Jivrambhai v. Amarsingh Civil Second Appeal No. 179 of 1970, decided on 5-8-1976.

7. Further, it is settled law that as soon as a dispute is raised under section 13(2), the liability under section 13(1) is arrested. See Chhogalal v. Idol of Bhagwan Shri Satyanarayan 1977 M P L J 446 (Second Appeal No. 284 of 1969, decided on 30-9-1976).

8. A further question has arisen, to answer which this Bench has. been constituted. The question may be illustrated thus. According to the plaintiff the agreed rate of rent is Rs. 50 per month, but the defendant has not paid rent for 10 months, so that Rs. 500 as arrears of rent have been claimed in the suit. The defendant admits that the agreed rate of rent is Rs. 50 per month but denies that he is liable to pay Rs. 500. His defence is based either on the ground that he has paid the whole or part of the alleged arrears of rent, or that he is entitled to adjustment for the amounts spent by him on behalf of the landlord. In such a case, it must be said that (a) there is no dispute as to the rate of rent, but (b) there is a dispute as to the amount of arrears of rent claimed in the suit. The tenant is required to pay (b) within one month of the service of the writ of summons on him and further he has to go on depositing (a) under the second Part of section 13(1) regularly every month.

9. The question is that a dispute having been raised as to the amount of rent (b), whether what is arrested is the tenants liability to deposit the arrears as claimed by the plaintiff (which arrears are to be deposited under the first part of section 13(1), or the tenants liability to deposit regularly rent for the concurrent month is also arrested, although the rate of rent is not in dispute.

10. Learned counsel for the landlord strenueously argued that since there is no dispute as to the rate of rent, it cannot be said that the Court has any jurisdiction to fix provisional reasonable rent within the meaning of section 13(2). Therefore, the tenants liability under the second part of section 13(1) is not arrested and if he does not deposit rent regularly as required by the second part of section 13(1), the defence is liable to be struck out under section 13(6), besides losing the protection under section 12(3) of the Act.

11. Learned counsel for the tenant, on the other hand, maintained that whatever may be the nature of the dispute under section 13(2), since every kind of dispute is covered by that sub-section, as soon as any dispute is raised, the tenants liability to deposit rent both under the first part and the second part of section 13(1) is arrested.

12. Although at first the landlords argument appeared very attractive and it could certainly be said with considerable amount of force and logic that where rate of rent is not in dispute where is the difficulty about the tenant depositing rent under the second part of section 13(1). However on a little reflection, we have reached the conclusion that the question must be answered by reference to the language of the provision. We have to state what the law is and not what the law should be.

13. The key to the problem is found in the word "thereafter" in the second part of section 13(1). The word "thereafter" (i. e. after that) necessarily refers to the tenants liability becoming operative under the first part of section 13(1). If that liability is arrested, the liability under the second part does not commence, because the liability under the second part commences only "thereafter" which means when the liability of the tenant under the first part is ripe for performance.

14. This may be demonstrated thus: Where a writ of summons is served on the 1st of February, but the tenant seeks extension of time of 3 months to deposit arrears of rent and the Court grants that time, the tenant is entitled to deposit the arrears of rent by the 1st June and it will be "thereafter" that is, after 1st June that the tenants liability under the second part of section 13(1) will commence; otherwise, anamolous results will follow. In the above illustration itself, it will then have to be said that the tenants liability to deposit rent under the second part of section 13(1) commences from the 15th March and the tenants liability to deposit rent for the current months would become due on the 15th March, 15th April and 15th May, before the extended time for deposit under the first part of section 13(1) expires. It will then come to this that although the tenant would he entitled to deposit the arrears of rent claimed in the suit on the 1st June, he will have to go on depositing current rent in the months of March, April and May as well. If that were so the word "thereafter" and the expression "continue to deposit" will be redundant and superfluous. Such an interpretation will be contrary to the accepted canons.

15. The word "thereafter" is clearly indicative of the tenants liability arising under the second part of section 13(1), after the liability under the first part of section 13(1) has accrued.

16. Since section 13(1) is controlled by section 13(2) it follows that as soon as a dispute under section 13(2) is raised and it is brought to the notice of the Court, the operation of section 13(1) is arrested so far as the amount to be deposited is concerned and it remains in suspense until provisional rent is fixed. See Jivrambhai v. Amarsingh.

17. It was an argument that if the tenant is not required to deposit rent month by month, even though there is no dispute as to the rate of rent, then the landlord will unnecessarily be deprived of the payment. To this the answer is that under the general law the landlord is entitled to enforce the tenants liability to pay rent regularly at the agreed periods. The landlord can always bring a suit for that purpose. It must be remembered that section 13 is not an alternative machinery for recovery of rent. The provisions of section 13, requiring the tenant to deposit rent, are merely to put a check on the tendency of the defendants in eviction suits to protract and delay them.

18. In the same context, it must be observed that it is the duty of the trial Court to fix provisional rent as early as possible, as soon as a dispute is raised. The need to decide the dispute and fix provisional rent has been emphasised time and again by this Court, particularly in Full Bench decisions. All subordinate Courts are bound to comply with those observations.

19. It has been observed in Jivrambhai v. Amarsingh (supra):--

As soon as a dispute under section 13(2) is raised, it is the duty of the trial Court to determine reasonable provisional rent forthwith, if, in its opinion, there is before it sufficient material for that purpose. Otherwise, it must fix a very early date and call upon the parties to produce prima facie evidence supported by affidavits on the date so fixed and then, after considering such evidence as may be produced by the parties, determine the reasonable provisional rent forthwith. As far as possible the provisional rent should be fixed before the next payment under section 13(1) becomes due

20. Accordingly, we answer the questions referred to us as follows:--

(1) Even when there is no dispute with regard to the rate of rent and the dispute is only with regard to the arrears of rent, on such a dispute, till the Court passes an order under sub-section (2) of section 13 of the Act, the operation of the whole of sub-section (1) of section 13 of the Act is arrested. To be more specific, the liability of the tenant to deposit monthly rent for the preceding month under the second part of section 13(1) does not commence until an order under sub-section (2) of section 13 is made.

(2) The order contemplated under sub-section (2) of section 13 of the Act is the one with regard to that part of deposit under section 13(1), for which there is a dispute.

21. This case shall now be laid before the Single Bench.