The Madhya Pradesh High Court has dismissed a petition challenging an executing court’s order to issue a possession warrant, holding that a tenant’s failure to pay rent for five continuous months made a compromise decree executable.
The Single Bench of Justice Vivek Jain observed that even if a landlord avoids receiving rent, the tenant must utilize legal avenues such as depositing the rent before the Rent Controlling Authority or tendering it via money order within the stipulated “breathing time.”
The case, Smt. Suman Soni vs. Shri Rathore Sakal Panch Trust Khandwa and Others, centered on whether the executing court erred in issuing a possession warrant against the petitioner. The petitioner claimed the arrears were paid in October 2017 and that the landlord had previously refused to accept the rent. The respondent maintained that a default of eleven months had occurred, violating the terms of a 2013 compromise decree which allowed for eviction after five months of continuous non-payment.
Background of the Case
The husband of the petitioner was originally a tenant in a shop owned by the respondent trust. An eviction suit was previously filed, resulting in a compromise decree on October 31, 2013. Under the terms of this decree, the monthly rent was set at ₹800. Crucially, the decree specified that if the defendant failed to pay rent for a continuous period of five months in the future, the eviction decree would become executable.
Following the death of the original tenant on October 15, 2016, rent was last paid up to October 30, 2016 (via a receipt dated December 15, 2016). When further payments were not made, the landlord filed an execution petition on May 1, 2017, against the tenant’s son. The petitioner, the wife of the deceased tenant, was later impleaded in these proceedings.
Arguments of the Parties
Counsel for the Petitioner: The petitioner argued that the impugned orders of the executing court dated August 26, 2019, and November 22, 2019, were “bad in law.” It was contended that the landlord had been avoiding the receipt of rent. The petitioner relied on an account statement showing that a cheque for ₹1,11,040 was tendered on September 20, 2017, but it bounced because the landlord’s account was blocked. Consequently, the petitioner argued there was no willful default.
Counsel for the Respondents: The respondents contended that the last rent payment only covered the period up to October 30, 2016. The next attempt to pay was in October 2017, representing a delay of eleven months. They argued the executing court correctly followed the compromise decree as the five-month default threshold had been crossed by April 1, 2017.
The Court’s Analysis
The High Court examined the payment records and the terms of the 2013 decree. It noted that the default of five months came into operation on April 1, 2017.
Regarding the petitioner’s claim that the landlord refused to accept the rent, the Court noted:
“Even if the landlord had been avoiding to receive the rent, the tenant could have deposited cheque in the Bank account within the breathing time of 5 months but he deposited the cheque also after 11 months of the last payment of rent.”
The Court further observed that the petitioner failed to use alternative legal remedies:
“Upon refusal of the landlord to accept the rent, the rent could have been paid before the Rent Controlling Authority, or tendered by money order, but the tenant even did not opt for this course of action available with the tenant.”
The Bench found that the attempt to pay by cheque in September 2017 occurred only after the execution notices were received, which did not cure the prior default that had already made the decree executable.
Decision
The Court concluded that this was a “clear case of the tenant defaulting to pay the rent and violating the terms of the compromise decree.” Finding no error in the executing court’s decision to issue a warrant of possession, the High Court dismissed the petition.
- Case Name: Smt. Suman Soni vs. Shri Rathore Sakal Panch Trust Khandwa and Others
- Case Number: Misc. Petition No. 6745 of 2019
