Deendayal Khairwal and another vs Mahesh Prasad Shah

A.K. Mishra, J.

Shri Prashant Mishra for the appellants. He is heard on admission. Ku. Malti Dadariya for the respondent.

This second appeal has been filed by the defendants-appellants aggrieved by the judgement and decree passed by the learned Courts below.

The plaintiff/respondent was a tenant in the suit shop which is portion of House No. 105/13 situated in Ward No. 7, Sadar Bazar, Raigarh. The plaintiff took the shop on monthly rent of Rs. 25/- from late Shri Ganpat Rai and was carrying on the business of tobacco. In the month of July 1979, the plaintiff had gone to Bihar, at that time the condition of shop was good, but taking advantage of his absence, the defendants-landlords (appellants herein) with the help of municipal employees demolished the shop on the pretext that it was in dilapidated condition and was a threat to inhabitants residing nearby.

The defendants-appellants thereafter constructed portion of the shop shown by ABCD in Schedule ''A''. The plaintiff alleged that he was still in possession of the shop shown in the schedule as BC & EF and still carries on his business of tobacco. However, he was dispossessed by the defendants without due course of law. Hence by filing the suit the tenant prayed that possession of the portion shown by ABCD in Schedule ''A'' be restored by him and permanent injunction be issued against the defendants restraining them from interfering with his possession.

The defendants-appellants denied the allegations of the plaint. It was contended that the shop was taken on rent on 30th October 1970 from defendant-appellant No. 1. It was further contended that they had not illegally dispossessed the plaintiff. The shop was in dilapidated condition and was rightly demolished by the Municipal Council under its order dated 22-9-1979. The other tenants had voluntarily left possession of the house. The plaintiff was not entitled to get back possession of the shop.

The trial Court dismissed the suit. An appeal was preferred by the unsuccessful tenant before the Court below. The Appellate Court came to the conclusion that the plaintiff was occupying the disputed shop which he had taken on rent from Ganpat Rai in the year 1967, who was father of the defendant No. 1, on monthly rent of Rs. 25/-.

The defendant No. 1 Deendayal as D.W. 1 also stated that he had given the shop on rent in the year 1970. Thus, the factum of tenancy is not in dispute nor the finding has been assailed in the present appeal.

The first Appellate Court came to the conclusion that the plaintiff being tenant can only be ejected on the grounds contemplated in Section 12(1) of the M.P. Accommodation Control Act, 1961. There are statutory grounds prescribed for ejectment of a tenant. The Court has come to the conclusion that tenancy still subsists and has not come to an end. There was no surrender of tenancy. The defendants have reconstructed the area show in ABCD. With respect to the construction made by the defendants-appellants, the Court has come to the conclusion that there are two inspection reports on record. One inspection report was of 15-3-80. In this report, the Judge has found that a wall parallel to the road was still standing and the door which paves the way towards back side of the wall was closed and locked and key was found to be with the plaintiff-respondent. It was further found that the door was further locked by the wall of the bricks from back side. The electric meter was still found attached on the back side of the wall and the same belonged to the plaintiff-respondent.

The matter traveled to this Court at the stage of temporary injunction in C.R. No. 1179/81. This Court by order dated 17-12-82 granted temporary injunction in favour of the plaintiff-respondent to maintain his possession over the wall and Parchhi. It was also ordered that as the defendants-appellants have raised some building after demolition they were allowed to continue with the construction and temporary injunction was refused to that extent.

The learned counsel for the appellants has submitted that the Appellate Court has erred in law while ordering that possession of the property which was demolished and the portion which has been reconstructed should be handed over to the tenant. The Appellate Court has come to the conclusion that in the lesser portion the plaintiff is still carrying on his business and he is entitled to get back portion of the house shown in ABCD as the tenancy has not been terminated and no ground has been shown existing as contemplated u/s 12(1) of the M.P. Accommodation Control Act, 1961.

The learned counsel for the appellants has further submitted that the tenancy came to an end by frustration of the contract due to the fact that the house had become unsafe for occupation and was dismantled by the Municipal Council. He has further submitted that the Municipal Council has not been arrayed as defendant hence suit was not maintainable. His further submission is that in lieu of re-entry, compensation could be ordered. He has placed reliance on two decisions in Shrikishandas vs. Radhabai, 1969 MPLJ 391 and Mahadeo Prosad Shaw Vs. Calcutta Dyeing and Cleaning Co., .

It may be seen that in Shrikishandas''s case (supra) it has been observed that if a structure has fallen down being dilapidated, and required reconstruction, the Court has two alternatives - it can either place a tenant in possession of the accommodation or can award compensation to the tenant in case it finds that there was default on the part of the landlord in respect of failure to recommence the work or failure to complete the work in a reasonable time, or failure to re-deliver the possession to the tenant after completion of the reconstruction work. In the said case, there was only vacant plot of land and no reconstruction was made. Hence it was held that vacant plot of land could not be ordered to be handed over to the tenant and it was observed that at the time when the matter was decided by the Court reconstruction was not made and the case was remanded to the trial Court for proper enquiry into the question of default on the part of the landlord in the matter of completing the construction. It was directed that if the reconstruction has been completed in the meantime the trial Court can redeliver the possession to the tenant and in case it has not been reconstructed the trail Court may fix such suitable compensation being made payable to the tenant as the circumstances of the case may warrant. Thus, the said decision does not help the case of the appellants, rather helps the case of the plaintiff- respondent/tenant.

In the other case Mahadeo Prosad Shaw Vs. Calcutta Dyeing and Cleaning Co., , in para 25 it has been held as under:

In that view of the matter, I hold that the tenant is still entitled to some benefit by way of restitution and he would be so entitled till a decree for ejectment is not passed by a competent Court. As no decree for ejectment has yet been passed, I hold he is entitled to the benefit of restitution and so I substantially agree with the finding of the Courts below.

Thereafter, in paragraph 26 the Court has observed that since the property was not reconstructed and property was not in existence, hence it was not possible to put the tenant back in possession. However, the tenant was found still entitled for restitution of other property leased out than the structure demolished. This decision also does not support the submission advanced by the learned counsel for the appellants.

It may be seen that Section 12(1)(h) of the M. P. Accommodation Control Act gives the ground which is to the following effect:

Restrictions on eviction of tenants. -- (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:

xxx xxx xxx xxx

(h) that the accommodation is required bona fide by the landlord for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or rebuilding or alterations cannot be carried out without the accommodation being vacated.

Section 18 of the Act gives a right of re-entry to the tenant in case a decree has been passed u/s 12(1) (h) of the Act. Right of re-entry has been given to a tenant which is a statutory right. In the instant case house was got demolished taking advantage of the absence of the tenant and there has been reconstruction made. Since the tenancy subsists and reconstruction has been made, the landlords/defendants-appellants are liable to place the tenant back in possession. They cannot be allowed to take the law in their own hands and evict the tenant by resorting to circuitous method of getting the structure demolished with the help of municipal council. Whatever that may be, dehors of that, as the tenancy subsists and re-construction has been made, the tenant is entitled to be placed back in possession of the portion shown in ABCD in Schedule ''A''. It is really unfortunate that for the last 20 years the defendant has been unjustly deprived of the accommodation though it was reconstructed way back.

In the case of Krishna Laxman Yadav and Others Vs. Narsinghrao Vithalrao Sonawane and Another, , there was a section of house occupied by several tenant which was excessively damaged by floods and was later on removed by the municipal corporation. New house was proposed to be constructed. In paragraph 11, it has been held by the Bombay High Court as under:

As already discussed above, the new construction of small room tenements which the first respondent is about to complete on the land on which the original house was situated must be made available to the petitioners for occupation as tenants of the first respondent. The right of occupation is incidental to the contract of tenancy which has continued to exist between the parties. The tenants would be entitled to specific performance of their rights in respect of the construction that will be put up. The petitioners would be entitled to occupy the tenements, of equal proportion and at about the same place as in the original house. We are unable to accept Mr. Mhamane''s submission in connection with the above right of the petitioners that the failure of the first respondent to complete the new construction was good defence. The existence of new construction was unnecessary for granting the relief claimed in the suit.

In the instant case there is no conduct of the tenant by which he can be said to have forfeited his right of re-entry. He has been litigating right before the construction was raised and had filed a suit immediately on demolition and is still in occupation of part of the accommodation. However, it is a case where the tenant ought to have been compensated suitably for being deprived of possession for such a long period causing loss of business without any just cause. But, in the absence of appeal against the impugned judgment and decree by the tenant that course is not being adopted.

I find no merit in the present appeal. No substantial question of law arises for consideration. The appeal is dismissed in limine.