Ghanshyam Hazarimal and another vs Nathmal Laxminarayan

A.P. Sen, J.—This order will also dispose of Miscellaneous Civil Case No. 223 of 1974 Ghanshyam and another v. Nathmai.

This further appeal execution, filed by the judgment debtors, Defendants, is directed against an order of the Additional Judge to the District Judge Bhopal, affirming that of the 4th Civil Judge, Class 11, Bhopa!, rejecting their application u/s 47 of the CPC to the executability of the decree. The connected application u/s 52 of the CPC has been filed by them for amending the decree in Second Appeal No. 119 of 1972 (Hazarimal and another v. Nathmal), decided on 4-9-1972.

The facts, in brief, are these: The plaintiff suit for ejectment u/s 12(1)(h) of the Madhya Pradesh / Accommodation Control Act 1961 was decreed by the 3rd Civil Judge, Class II, Bhopal, but the learned Judge while decreeing the suit filed assertain u/s 1861) of the Act from the Defendants whether they wanted to exercise their option of recovery upon re-construction of the demised premises. That was, however see eight in appeal by the 3rd Additional District judge, Bhopal, who directed the defendants to deliver possession of the accommodation to the Plaintiff on or before 15-2-1972. The Defendants, however, instead of delivering possession of the premises to the plaintiff, preferred a second appeal to this Court. In second appeal Singh J. affirmed the decree for ejectment u/s 12(1)(6), but did not in my opinion rightly, appoint another date u/s 18(1) of the Act.

When the plaintiff put the decree in execution, the Defendants raised an objection u/s 47 of the Code, stating that they had, by their notice to the plaintiff stated that they were ready to hand over processions of the premises, as required by section 18(1) of the Act and, therefore, the Exceeding Court should give them time to vacate. That objection of their was rejected by the Executing Court as also by the learned Additional District Judge.

The decision of the case turns upon the construction of section in of the Madhya Pradesh Accommodation Control Act, 1961, which reads--

Recovery of passion for repairs and rebuilding and re-entry-(1) makaig any order on the grounds specified in clause (g) or clause (h) of sub session (1) of Section 12, the Court shall ascertain from the tenant whether i.e elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted and, If the tenant so elects, shall record the fact of the election in the order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re budding, as the case may be.

(2) If the tenant deliver possession on or before the date specified in the order, the landlord shall, on the completion of the work of repairs or building or re-building place the tenant in occupation of the accommodation or part thereof, as the ease may be, within one month of the completion of such work.

(3) If, after the tenant has delivered possession on or before the date specified in the order, the lanelord fails to commence the work of repairs or building or re-building within one month of the specified date or fails to complete the work in a reasonable time or having completed the work, fails to place the tenant in occupation of the accommodation in accordance with Sub-section (2), the Court may, on an application made to it this behalf by the tenant within such time as may be prescribed order the landlord to place the tenant in occupation of the accommodation or part thereof or to pay to the tenant such compensation as the Court think fit.

In support of the appeal, reliance is placed on the following observation of Raina J, in Chandrashekhar Jaikishan Bajpai Vs. Niyamatram,

''''Section 18 confers a very valuable right on the tenant and casts a duty on the Court to do the needful in order to enable him to exercise that right. A Court of appeal is invested with all the powers of the trial Court and where the trial Court fails to perform an important out cast upon it by the legislature, the appellate Court can itself perform that duty while dealing with an appeal. The appellate Court can step in to perform this duty where the trial Court has failed to do so.

Where the date specified by the Courts below under Sub-section (1) of section is has become meaningless as a result of the appeal it is the duty of the appellate Court to specify a fresh date for the purpose of sub-section (1) of section 18. It is obvious that this Court failed to perform this duty through inadvertence while disposing of the appeal and this omission can now be rectified by this Court in exercise of its powers u/s 151 read with Section 152 of the Code of Civil Procedure. It is a cardinal principle of justice that no one shall be injured by an act of omission the part of the Court. The Court can, therefore, very well do the needful in exercise of its powers u/s 151 as well as u/s 152, Civil Procedure code. The Court has inherent powers to act ex debito justicatae to do real and substantial Just one which is its chief function. The applicant cannot, therefore be denied the benefit of Sub-section (2) of section 18 of the Act.

In that view, Raina J. who had heard the second appeal in that case, specified the date on which possession was delivered in execution of the decree as the date for delivery of possession for purposes of section 18(1) of the Act.

In view of the settled law, the view of Raina J. in Chandrashekhar v. Niyamatram (supra) does not appear to be correct. His attention was apparently not drawn to the decision of the Supreme Court in Ram Nath and Another Vs. Ram Nath Chhittar Mal and Others, , and that of this Court in Horgovind v. Smt. Sunder Bal 1970 JLJ (N) 123 and Babulal and anther v. Mahabir Pershad 1973 JLJ (N) 77.

Under the scheme of the Act, the Court is enjoined with a duty u/s 18(1) while passing a decree u/s 12(1)(h) to ascertain from the tenant whether lie elects to be placed in occupation of the accommodation, from which he is to he evicted, and if he so elects, shall record a fact of the election in the order, and specify therein the date on or before which he shall deliver possession, so as to enable the landlord to commence the work of repairs or re-building as the case may be.

It is plain from the provisions of Sub-sections (2) and (3) of Section 18 that the right of re-entry is given to the tenant a concession on the fulfilment of the conditions precedent, namely, that the tenant must deliver possession of the accommodation to the landlord on or before the dates specified in the decree. Hargovind v. Smt. Sunder Bai (supra). If the tenant fails to do so, he forfeits the light of re-entiy. Bahidal and another v. Mahabir Pershad (supra). The provision of Section 18(3) has to be construed strictly and, the tenant planding that privilege, must fulfil it exactly. After all, the right of re-entry is given to him as a concession on the fulfilment of the condition precedent.

In Ram Nath v. Ram Nath Chittar Mal (supra), their Lordships, while interpreting the analogous provision contained in Section 15(3) of the Delhi and Ajmer Rent Control Act, 1952, observed as follows:--

Under that section they had the right to elect and did elect to get possession after rebuilding; this possession was to be given by the landlords to the tenants within a reasonable time and six months'' period was held by consent between the parties and the rent, if the respondents were not put into sion on the same terns as before, was to be settled by Court and that is what was done under the terms of the consent decree. The applications for being put into possession which were filed by the respondents were really u/s 15(3) of the Act. As the respondents did not deliver possession to the appellants on or before the dates specified in the decree the provisions of Section 15 contained in Sub-section (3) if that Act were not available to them and they were not entitled to be put into possession as prated by them.

No doubt, the word "Court" appearing in Section 18 means not only the Court trying the suit, but also the appellate Court. It may well be that the landlord''s suit u/s 12(1)(h) may fail in the Court of first instance, but succeed in appeal. All that the section provides is that the "Court" while making an order for eviction u/s 12 (l) (g) (h) shall ascertain whether the tenant elects to be placed in possession. When the suit is decreed by the trial Court, that Court lias the duly to ascertain the fact, and if the tenant so elects, to specify a date by which he should deliver possession. But, if the suit is decreed on appeal the appellate Court has to perform that duty.

The Act, however, nowhere provides that when the tenant does not abide by his election and files, instead, an appeal against the decree, the appellate Court should specify another date. The tenant has to make a choice, If the tenant does not stand by his election, lie forfeits the right of re-entry. In Second Appeal No. 151 of 1967 Vijay Kumar and others v. Shrimati Mahadevi and others decided on 21-8-1971, in similar circumstances, I had occasion to observe--

I refrain from making any direction u/s 18(1) of the Act. The Act nowhere contemplates that an appellate Court in hearing an appeal against a decree u/s 12(1)(h) should make a fresh direction in terms of Section 18 (I). Such a direction was made by the learned Additional District Judge and the matter must rest at that.

I find no reason to take a different view now.

The result, therefore, is that, both, the appeal as well as application, must fail and are accordingly dismissed with costs. Counsel''s fee, in appeal, Rs. 50, if certified.