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1986 DIGILAW 434 (KAR)

PINJARU SHAHABUDDIN SAHEB v. SONI HIRALAL

1986-11-11

HAKEEM

body1986
HAKEEM, J. ( 1 ) THIS application is filed by the landlord to recall the order dated 20-6-1986 granting the tenant one year's time to vacate the premises, on the ground that before communication of the said order to the Court, possession had been delivered to him in execution of the eviction order. ( 2 ) IN order to appreciate the point raised in this matter, it is necessary to mention certain material facts. The landlord's petition for eviction of the tenant on the ground under Section 21 (1) (h) of the Act was allowed by the trial Court. While confirming the said order in revision, the learned district Judge by his order dated 19th September 1985, granted the tenant 9 months time to vacate the premises. Being aggrieved by the said order the tenant filed the above Revision under section 115 of the Code of Civil Procedure, which ultimately came up for admission on 20th june 1986, after notice to the learned Advocate for the landlord. While rejecting the C. R. P. the tenant was granted further time of one year to vacate the premises. In the meanwhile, it transpires, that the time earlier granted by the learned District Judge to vacate the premises having expired on 19th June 1986 itself, the landlord filed an execution case before the executing Court on 20th June 1986 seeking delivery of possession of the premises. It is not seriously disputed that before the formal communication of the order regarding extension of time, possession of the premises was delivered to the landlord at about 10-30 A. M. on 21st June 1986 in pursuance of the warrant issued by the Executing Court. The landlord has now sought for recalling the order granting further time in view of the fact that it had become infructuous in view of the delivery of the premises having been given to the landlord. ( 3 ) IN the above facts and circumstances, the only question that arises for consideration is whether the grant of time for vacating the premises in Revision by this Court amounts to modification of the eviction order, whereby the executing Court loses its jurisdiction to order execution of the decree? According to Mr. ( 3 ) IN the above facts and circumstances, the only question that arises for consideration is whether the grant of time for vacating the premises in Revision by this Court amounts to modification of the eviction order, whereby the executing Court loses its jurisdiction to order execution of the decree? According to Mr. T. S. Ramachandra, the learned Counsel for the landlord, such an order passed does not amount to modification of the decree itself, since it is in the nature of a discretionary order, which would become infructuous, if the same is not communicated to the court below in time. On the contrary Mr. Jaya Vittal Kolar, the learned Counsel for the tenant, contends that it amounts to modification of the decree and as such delivery proceedings resulting in the eviction of the tenant are bad in law and hence the tenant is entitled to be put back in possession of the premises. He further submitted that such an order takes effect even with out being communicated to the lower Court. ( 4 ) IN T. Rajaram v. Radhakrishnayya, AIR1961 SC 1795 , [1962 ]2 scr452 the Supreme Court had to consider a similar question viz. , whether an order regarding variation of the quantum of costs made by the appellate Court would amount to the modification of the decree itself, which is binding upon the Court. In that context the Supreme Court has stated thus in para 19: "before we part with this appeal we would like to make it clear that if an appellate decree confirms the decision of the Trial Court but merely makes a variation in regard to the order as to costs a such a variation would not affect the character of decree which would in law amount to a decree of affirmance, whether the variation as to costs is made in favour of one party or the other. The position with regard to interest, however, is different : for instance, in regard to a claim for interest before the date of the decree which is a part of the dispute between the parties if the appellate Court makes a variation in respect of the award of interest that would affect the character of the appellate decree. The position with regard to interest, however, is different : for instance, in regard to a claim for interest before the date of the decree which is a part of the dispute between the parties if the appellate Court makes a variation in respect of the award of interest that would affect the character of the appellate decree. Unlike the order of costs which is entirely in the discretion of the Court under Section 35 of the Code of Civil Procedure or an order as to interest which the court can make under Section 34 of the Code forms part of a dispute between the parties, and in that sense if a variation is made in regard to it is an integral part of the decision or the decree. In this connection it may also be necessary to make it clear that if the appeal Court makes a variation in the decision of the Trial Court either because a concession has been made in that behalf or the variation has been obtained by the parties by consent or a part of the subject matter covered by the decree has been withdrawn such variation cannot affect the character of the appellate decree The principle of affirmance on which the provision rests postulates either affirmance or variation by the appeal Court as an act of adjudication and that necessarily means the decision of the appeal Court on the merits. " ( 5 ) THIS Court had an occasion to examine the nature of an order granting time to the tenant to vacate the premises which was ordered to be vacated in the proceedings. In Prabhakar v. Venkataswamy, M. S. Patil, J. , 1982 (2) KLJ 446 has analysed the point raised in the following manner : "the protection from eviction given to a tenant under the Rent Control Act comes to an end the moment the order of eviction is made and he will have no right to continue in possession of the premises. The land lord becomes entitled to recover possession in execution of the order of eviction, unless the execution is stayed. Because of this, a practice has been developed and hardened into law to give reasonable time to the tenant to give vacant possession of the premises to the landlord. The land lord becomes entitled to recover possession in execution of the order of eviction, unless the execution is stayed. Because of this, a practice has been developed and hardened into law to give reasonable time to the tenant to give vacant possession of the premises to the landlord. When the original Court makes an order of eviction and grants time and the revisional Court confirms the order of eviction and grants time, it does so in exercise of the inherent powers while disposing of the matter. This time is granted with or without the consent of the landlord. Where the landlord consents, it is well and good. Even when the landlord does not consent, the Court exercises its own power and grants such time as would be reasonable in that circumstances of the case. When the Court grants such time it has also jurisdiction to extend such time where the tenant makes out sufficient cause for extension. The provisions of Section 151 of C. P. C. are procedural. It is not the consent that gives jurisdiction to make an order regarding the time, but the Court has inherent powers vested in it to make such order whether it is necessary for ends of justice to do so. In other words, in cases not covered by express provisions and in the absence of any statutory bar, the Court can in exercise of its inherent power extend time already granted. The High Court has ample powers, to do justice to a litigant if sufficient cause is made, to extend time. Even where the time is fixed by consent of the parties, it will not be a bar for the Court for extending time when it becomes necessary to do so for the ends of justice. " I am in respectful agreement with this view. It is thus clear that only when there is variation of the order on merits it amounts to modification of the decree. The decree in this case is an order of eviction, which terminates the tenancy. The Trial Court itself in its inherent discretion grants time after passing the decree of eviction. It seems to me that this part of the order of the Trial court or the High Court as the case may be, granting extension of time, cannot be considered to be an order on merits of the case. The Trial Court itself in its inherent discretion grants time after passing the decree of eviction. It seems to me that this part of the order of the Trial court or the High Court as the case may be, granting extension of time, cannot be considered to be an order on merits of the case. ( 6 ) SRI Kolar, placed strong reliance on the decision of the Supreme Court in Mulraj v. Murti raghunath. , AIR1967 SC 1386 , 1967 (0 )BLJR665 , [1967 ]3 SCR84 however, it appears to me that the ratio of the decision of thatcase is not applicable to the facts and circumstances and point raised in these proceedings. In this view of the matter, the landlord's application has to be allowed. Accordingly,. A. III is allowed. The order dated 20-6-1986 granting time to the tenant is hereby recalled. In the circumstances of the case, parties shall bear their own costs.