SHYAMSUNDER v. BHANWARLAL — 1986 DIGILAW 2 (MP)

K. L. SHRIVASTAVA, J. ( 1 ) THIS order shall also govern the disposal of Civil Revision No. 378 of 1982 between the same parties. They arise out of the orders dt. 9-3-82 passed by the Civil Judge Class II Dhar in Miscellaneous Judicial Case No. 24 of 1981 and in the Execution Case No. 436-A of 1978. ( 2 ) THE circumstances giving rise to these revisions are these : - non-applicant is the tenant of the applicant in the accommodation in question (upper storey of House No. 79 Shivaji Marg Dhan Mandi Dhar ). A suit for eviction (Civil Suit No. 436-A of 1978) was instituted against him in the Court of Civil Judge Class II Dhar under Section 12 of the Madhya Pradesh Accommodation Control Act 1961 (for short 'the Act') on the grounds of non-payment of arrears despite notice and the same also amounting to nuisance and also on the ground of encroachment of a portion of the accommodation not let to him. Thus the grounds were those mentioned in Ss. 12 (1) (a), 12 (1) (c) and 12 (1) (e) of the Act. ( 3 ) THE non-applicant resisted the suit contending inter alia that he had made no encroachment as alleged. ( 4 ) AT the conclusion of the trial, the learned trial Judge decreed the suit on the grounds under S. 12 (1) (c) and 12 (1) (e) of the Act. ( 5 ) IN appeal, the learned first appellate court set aside judgment and decree passed by the trial Court and dismissed the suit, however, giving directions under S. 12 (11) of the Act which the learned trial court had omitted to give. The directions given by the first appellate Court are that the non-applicant shall deliver vacant possession of the encroachment portion (as shown by red colour in Ex P/2) to the landlords by 26-6-81. There is the further direction that the non-applicant shall deposit in the lower Court compensation from 27-12-77 at the rate of Rs. 15/- p. m. and shall also inform the landlords. There is also the direction to inform the Court by the aforesaid date that the encroached portion has been vacated. It has further been ordered that the non-compliance with these directions will entitle the landlords to obtain possession on the accommodation in dispute after the aforesaid date. 15/- p. m. and shall also inform the landlords. There is also the direction to inform the Court by the aforesaid date that the encroached portion has been vacated. It has further been ordered that the non-compliance with these directions will entitle the landlords to obtain possession on the accommodation in dispute after the aforesaid date. As pointed out in para 15 of the judgment in Kewal Chand's case 1983 MPRCJ 35 a decree u/s 12 (1) (c) of the Act has to be a conditional one. ( 6 ) ON 26-6-81, the non-applicant applied to the learned trial court stating therein that he was depositing mesne profits at the rate of Rs. 15/-p. m. as ordered by the lower appellate Court and that the portion allegedly encroached upon was never in his possession and is lying vacant and that the landlords are free to use the same. This application was ordered by the trial Court to be registered as M. J. C. No. 24 of 1981. In his reply dt. 4-9-1981 to the aforesaid application by the tenant, the landlords denied that the encroached portion had all along been lying vacant. It was contended that unless possession was delivered to them the portion could not be used. They prayed for warrant of possession of the entire accommodation including the portion encroached upon on the ground that they were entitled to that relief, the tenant having failed to comply with the decretal directions given by the learned appellate Court. ( 7 ) IN view of the application and the reply controversy as to whether the encroached portion had been vacated as directed by the lower appellate Court did arise for consideration. ( 8 ) THE learned trial Court without inquiring into the question just heard arguments in M. J. C. and held that the tenant had vacated the encroached portion and there is compliance with the decretal directions given by the learned appellate Court. In this view by its order dt. 9-3-82 it also rejected the landlord's prayer for warrant of possession of the premises. This is the order impugned in the revision in question. ( 9 ) NOW as to the other revision petition. In this view by its order dt. 9-3-82 it also rejected the landlord's prayer for warrant of possession of the premises. This is the order impugned in the revision in question. ( 9 ) NOW as to the other revision petition. On 29-6-81 the landlords had filed an application for execution praying that as the directions given by the learned lower appellate Court were not complied with by the tenant, the possession of the tenanted premises and the portion encroached upon be delivered to them under a warrant. ( 10 ) ON 3-10-81 the tenant filed his reply in answer to the notice under O. 21 R. 22 CPC. Therein it was contended that on 26-6-81 itself he had informed that the accommodation allegedly encroached upon by him is not in his possession and is lying vacant, and that the landlords were trying to take undue advantage of the default clause in the judgment and decree of the lower appellate Court. ( 11 ) IT is clear that in the execution case also there was the controversy as to whether the accommodation encroached upon was vacated on 26-6-81. ( 12 ) HERE too no evidence was recorded touching the controversy aforesaid, and after hearing arguments on 13-2-82 the learned executing Court ordered on 1-3-82 that in MJC No. 24 of 1981 by its order it has been held that the tenant had complied with the direction in the judgment and decree of the lower appellate court and, therefore, the decree-holders should state what further action they intend to take. Civil Revision No. 378 of 1982 by the landlords is against this order. ( 13 ) THE petitioners' contentions in these revisions are that the impugned orders passed by the learned trial judge holding that the tenant had complied with the judgment and decree of the lower appellate court are the results of misinterpretation of the stand taken by the tenant and that the learned trial court has exercised its jurisdiction illegally and with material irregularity. The finding of the Court was also assailed as perverse. ( 14 ) THE point for consideration is as to whether the revision petitions deserve to be allowed. The finding of the Court was also assailed as perverse. ( 14 ) THE point for consideration is as to whether the revision petitions deserve to be allowed. ( 15 ) THE contention of the petitioners' learned counsel is that the direction of the learned lower appellate Court was for delivery of possession of the encroached portion by the tenant to the landlords and despite this the stand of the tenant Has been that he had never encroached upon the portion and that it was lying vacant as before. He goes on to urge that there has been no delivery of possession to him and the portion continues to remain in the tenant's possession. ( 16 ) THE learned counsel for the non-applicant urges that the substance of the matter is that on 26-6-81 the portion was vacant as stated in the application filed by the tenant and, therefore, there is no question of issue of warrant of possession of the accommodation in question. ( 17 ) IN order to appreciate the rival contentions, it is apposite to advert to the provision embodied in S. 12 (11) of the Act. It reads thus : - s. 12 (11 ). No order for the eviction of a tenant shall be made on the ground specified in cl. (o) of sub-sec. (1), if the tenant within such time as may be specified in this behalf by the Court vacates the portion or portions of accommodation not let to him and pays to the landlord such amount by way of compensation as it may direct. ( 18 ) IT has to be conceded that there is a clear distinction between the words 'to deliver possession' and 'to vacate'. It may be pointed out that S. 12 (11) of the Act used the word 'vacate' but section 18 of the Act dealing with 'recovery' of possession for repairs and rebuilding and re-entry provides for delivery of possession to the landlord. It may be pointed out that S. 12 (11) of the Act used the word 'vacate' but section 18 of the Act dealing with 'recovery' of possession for repairs and rebuilding and re-entry provides for delivery of possession to the landlord. In R. C. Khare's Commentaries on the Act (5th Edition 1985) in note No. 6 on S. 18 with reference to decided cases, it has been stated thus : - "while delivery of possession is a bilateral act and requires one side to give up possession and the other side to receive it or accept it, the term 'vacate' implies an unilateral act and for purpose all that is necessary is that the person in possession should give up possession. Mere intimation about tenant's intended vacation would not amount to delivery of possession. ( 19 ) IT may be noted that under S. 12 (11) of the Act the requirement is that the tenant vacates the portion not let to him. No doubt that the decretal direction by the lower appellate Court is for delivery of possession. It was, however, to be read in the context of the provision under S. 12 (11) of the Act as it was passed with a view to comply therewith. ( 20 ) IN the instant case the tenant not accepting the position that he had encroached upon any portion, had stated that the accommodation was lying vacant as before and that the landlords were free to use it. The fact that the portion had been vacated is clearly implicit in the aforesaid stand taken by the tenant. ( 21 ) IN the instant case as already stated there is no evidence on which the controversy between the parties as to whether the encroached portion was vacant on 26-6-81 could be determined. The learned lower Court has given its finding on a question of fact without any, relevant evidence. ( 22 ) SECTION 115 (1) (c) of the C. P. C. authorises the High Court to pass such orders in revision as it thinks fit where the subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity. ( 22 ) SECTION 115 (1) (c) of the C. P. C. authorises the High Court to pass such orders in revision as it thinks fit where the subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity. The use of the word 'acted' indicates the true position and refers to the class of cases where the Court having jurisdiction violates a rule of law or of procedure prescribing the mode in which such jurisdiction is to be exercised. The arriving at a conclusion or decision is only a mental operation and the Court cannot be said to be 'acting' in so coming to a conclusion or a decision on a question of law or fact. In this connection the decision in D. L. F. Housing and Construction Co. ,'s case, AIR 1971 SC 2324 may usefully be perused. ( 23 ) FROM a perusal of note No. 12 on section 115 in the AIR Commentaries on the Code of Civil Procedure (9th Edition) it is gathered that whether an act is illegal or merely irregular seems to depend upon the importance of the provision of law disregarded. Thus there the law expressly prohibits a thing to be done, a disregard of such a provision has been held to amount to an illegality. In Venkatagiri's case, AIR 1949 PC 156, their Lordships of the Privy Council construed the words 'acting illegally' to mean acting in breach of some provision of law and the word 'acting with material irregularity' to mean committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. This construction has been approved by their Lordships of the Supreme Court in AIR 1968 SC 1355 and AIR 1953 SC 23 . ( 24 ) IN view of the controversy regarding the encroached portion being vacant or not on the relevant date the proper course for the learned trial court was to decide the question on oral evidence or on affidavits by taking recourse to the provisions of Order 19 CPC. The learned trial Court in deciding the controversy without affording any opportunity to the parties to place on record necessary material for the disposal of the controversy did act with material irregularity in exercise of its jurisdiction. The learned trial Court in deciding the controversy without affording any opportunity to the parties to place on record necessary material for the disposal of the controversy did act with material irregularity in exercise of its jurisdiction. In the event the portion was not vacant on 26-6-81 and there has been non-compliance with the direction given by the lower appellate Court. The landlords by the impugned orders do stand deprived of their valuable right to get possession of the premises and this can certainly be termed as irreparable injury to them within the meaning of the proviso to S. 115 of the Civil P. C. ( 25 ) IN the result, the revision petitions are allowed. The impugned orders are set aside. The matter is remanded to the trial Court. It is directed to give the parties an opportunity of adducing evidence touching the controversy and then decide as to whether or not the tenant had by the material date vacated the portion encroached upon and then to proceed to dispose of the M. J. C. and the execution application in the light of its finding and the directions of the lower appellate Court if attracted. In the circumstances of the case, the parties are directed to bear their own costs as incurred. Petitions allowed. .