BHAGATSINGH v. BHOJSINGH RAO — 1994 DIGILAW 656 (MP)

U. L. BHAT, J. ( 1 ) THIS Second appeal has come up before us on a reference made by learned single Judge - (Shri V. S. Kokje, J. ). ( 2 ) RESPONDENTS are landlords of a building let out to the appellant-tenant. They filed a suit for eviction of the tenant under Section 12 (1) (h) of the M. P. Accommodation Control Act 1961 (for short 'the Act') on the ground that the building was bona fide required for the purpose of rebuilding which cannot be carried out without the accommodation being vacated. The tenant defended the suit. The trial Court dismissed the suit. In the appeal filed by the landlords, the 1st Appellate Court reversed the findings of the trial court and granted a decree for eviction under Section 12 (1) (h) read with Section 18 of the Act. The Lower Appellate Court directed the tenant to vacate the building on or before 28-2-1990 anal the landlords to construct the building on or before 28-2-1991 and to put the tenant in possession of the building on or before 31-3-1991. This decree is being challenged in the Second Appeal. ( 3 ) THE learned single Judge who heard the second Appeal, on reappreciation of the evidence came to the conclusion that the findings of the learned 1st Appellate Court are reasonable and not arbitrary. In particular the learned single Judge upheld the finding that the building needed rebuilding and for that purpose required to be vacated and the landlords have the required funds for the purpose. ( 4 ) THE respondents (landlord) urged before the learned single Judge that while dismissing the second Appeal the time fixed by the first Appellate Court to vacate the building should not be extended. The learned Judge noticed conflicting decisions of this court on the jurisdiction of the appellate court to so fix the time and made the reference: The Chief Justice has ordered that the case be placed before a Division Bench. We have heard learned counsel for the parties. ( 5 ) ON the question of the landlord satisfying the ingredients of Section 12 (1) (h) of the Act, the findings arrived at by the first Appellate Court appear to be reasonable and sustainable. We have heard learned counsel for the parties. ( 5 ) ON the question of the landlord satisfying the ingredients of Section 12 (1) (h) of the Act, the findings arrived at by the first Appellate Court appear to be reasonable and sustainable. There is ample evidence to indicate that the landlords bona fide require the premises for the purpose of reconstruction which cannot be carried out without accommodation being vacated. The evidence also would indicate that the landlords have sufficient funds to undertake the reconstruction. ( 6 ) THE only question which survives for consideration is whether the appellate court can fix or extend the time granted to the tenant to vacate the premises and whether the Appellate Court while dismissing the appeal has jurisdiction to extend the time. ( 7 ) SECTION 12 imposes certain restrictions on the rights of landlords in the matter of eviction of tenants. No suit shall be filed in a Civil Court against the tenant for his eviction from any accommodation excepting on one or more of the grounds enumerated in clauses (a) to (p) of Section 12 (1) of the Act. Subject to this restriction it is within the jurisdiction of the Court to pass a decree in appropriate cases. The provision has been subsequently amended changing the forum from Civil Court to a Tribunal. Rent Controlling Authority in certain specified cases. The present case does not attract the jurisdiction of Rent Controlling Authority. ( 8 ) SECTION 18 of the Act is a special provision in relation to recovery of possession on grounds specified in Clauses (g) or (h) of Section 12 (1) of the Act viz. ground of bona fide requirement for effecting repairs or building or rebuilding etc. , as the case may be Section 18 of the Act reads thus"18. ( 8 ) SECTION 18 of the Act is a special provision in relation to recovery of possession on grounds specified in Clauses (g) or (h) of Section 12 (1) of the Act viz. ground of bona fide requirement for effecting repairs or building or rebuilding etc. , as the case may be Section 18 of the Act reads thus"18. Recovery of possession for repairs and rebuilding and re-entry.- (1) In making any order on the grounds specified in clause (g) or clause (h) of sub-section (1) of Section 12, the Court shall ascertain from the tenants whether he 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-building, as the case may be; (2) If the tenant delivers possession on or before the date specfified in the order, the landlord shall, on the completion of the work of repairs or building or rebuilding place the tenant in occupation of the accommodation or part thereof as the case 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 landlord fails to commence the work of repairs or rebuilding 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 in 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 thinks fit. " the cases covered by Section 18, while passing the order of evictions it is the duty of the Court to ascertain from the tenant whether he elects to be placed in occupation of his accommodation or part thereof from which he is to be evicted; and if the tenant so elects the Court shall record the fact of the election in the order and specify therein the date on or before which the tenant shall deliver possession. The landlord shall on completion of the work of repairs or building or rebuilding place the tenant in occupation of the accommodation or part thereof as the case may be, within one month of the completion of such work. If after the tenant has delivered possession on or before the date specified in the order and the landlord fails to commence the work of repairs or building or rebuilding 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 the court may on an application made to it in this behalf by the tenant within such time as may be prescribed order the landlord to place the tenant in occupation or the accommodation or part thereof or to pay to the tenant such compensation as the court thinks fit. ( 9 ) THE trial court may grant an order for eviction or may dismiss a suit for eviction. In either case, the unsuccessful party has a right of appeal to the Appellate Court. If the landlords suit has been dismissed he may file an appeal. If the First Appellant Court may in appropriate cases pass an order for eviction. In so passing an order for eviction, the First Appellate Court will also be bound to follow the provisions of Section 18 of the Act. That is because it is that court which is passing the eviction order for the first time under clause (g) or (h) of Section 12 (1) of the Act. It is not open to the First Appellate Court to ignore Section 18 of the Act as it confers a right on the tenant to exercise his option and where he exercises option the Court is bound to specify the time frame. The tenant has certain consequential rights flowing from Sec. 18 of the Act. It is not open to the First Appellate Court to ignore Section 18 of the Act as it confers a right on the tenant to exercise his option and where he exercises option the Court is bound to specify the time frame. The tenant has certain consequential rights flowing from Sec. 18 of the Act. ( 10 ) WHERE the trial Court has ordered eviction and invoked the powers u/ s. 18 of the Act, it is open to the aggrieved tenant to file an appeal. The first Appellate Court may confirm or reverse or modify that order. If it chooses to confirm the order, can it modify the time schedule specified by the trial Court? The appellate Court might or might not stay execution of the trial Court's order. It cannot be said that the First Appellate Court which has stayed execution of the order pending the appeal, cannot revise the dates specified by the trial Court under Sec. 18 of the Act. That would render the appeal itself a futile exercise. The power should necessarily be exercised, since the First Appellate Court admitted the appeal and also granted the stay. The same consequence must follow even where the First Appellate Court admitted the appeal but declined to stay execution or where it dismisses the appeal in limine; that is because the appeal is a continuation of original proceedings and the appellate Court has all the powers which the trial Court has. As observed by the Supreme Court in Ramankutty Guptan v. Avara, AIR 1994 SC 1699 . "it is clear that the decree of the appellate Court would be construed to be the decree passed by the Court of first instance. It is settled law that an appeal is a continuation of the suit. Therefore, where a decree for specific performance has been dismissed by the trial Court, but decreed by the appellate Court, it should be construed to be in the same suit. " ( 11 ) THE reference order refers to conflict of decision. It is settled law that an appeal is a continuation of the suit. Therefore, where a decree for specific performance has been dismissed by the trial Court, but decreed by the appellate Court, it should be construed to be in the same suit. " ( 11 ) THE reference order refers to conflict of decision. In Chandrashekhar v. Nivamatram, 1972 MPLJ 770 Raina, J. held that where the date fixed by the trial Court becomes irrelevant because of appeal, the appellate Court has to fix the date for the tenant to vacate the premises and where the trial Court has failed to perform the duty of specifying the date, the appellate Court has to perform the duty while disposing of the appeal. A contrary view has been taken by Sen, J. in Ghanshyam Hazarimal v. Nathmal Laxminarayan, 1975 MPLJ 509 holding that if a suit for eviction is decreed on appeal, the appellate Court has to perform the duty under Section 18 of the Act, but the Act does not contemplate the appellate Court, in hearing the appeal against a decree, to make a fresh direction in terms of Section 18 (1 ). The learned Judge placed reliance on Ramnath v. M/s. Ramnath Chhittar Mal, AIR 1961 SC 104 , Hargovind v. Smt. Sunder Bai, 1970 JLJ (SN) 123 and Babulal v. Mahavir Prasad, 1973 JLJ Note 77. ( 12 ) IN Ramnath's case (supra) Supreme Court considered the provisions of Delhi and Ajmer Rent Control Act. There was a compromise decree in terms of Section 15 of the Act. The tenant did not handover possession of the premises in terms of the compromise decree. The Supreme Court held that the benefit of provisions of Section 15 (3) are not available to the tenant. The decision in Hargovind's case arose u/ s. 18 (3) of the Act. The tenant failed to deliver possession of the accommodation to the landlord by the, date fixed in the decree. K. L. Pande, J. took the view that the right of re-entry is given to the tenant as a concession on the fulfilment of the condition precedent, namely that the tenant must deliver possession of the accommodation to the landlord on or before the date specified in the decree and hence provision must be construed strictly and the tenant claiming that concession must fulfil it exactly. If the tenant fails to do so he is not entitled to the concession. A similar view was taken by G. P. Singh, J. , as he then was, in Babulal's case (supra) in a matter arising on a compromise decree. ( 13 ) THE above three decisions relied on Ghanshyam Hazarimal's case do not throw any light on the controversy relating to the powers of the appellate Court. The decisions dealt with the nature and extent of right of the tenant to seek re-entry to a building which he had vacated beyond the time and did not consider the nature and extent of the powers of the appellate Court to specify the date under Section 18 of the Act. The reasoning in Hargovind's case and Babulal's case that what is granted to the tenant u/ S. 18 of the Act is a concession based on a condition precedent does not flow from the language of Section 18 or the Scheme of the Act. Section 12 imposes certain restrictions on filing suits for eviction. Section 18 singles out cases arising under two of the clauses viz. (g) and (h) of Section 12 (1) of the Act, requiring the Court to ascertain whether tenant elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted and if he so elects to record the fact of the election in the order and specify therein the date on or before which he shall deliver possession to the landlord. The provision confers on the tenant right to exercise the option and the same cannot be regarded as a "concession". The legislative purpose is to protect tenants who may face harassment at the hands of the landlord. The three decisions relied on in Ghanshyam Hazarimal's case do not support of the ratio of the decision. With great respect, the ratio in Ghanshyam Hazarimal's case does not lay down good law. ( 14 ) EVEN the trial Court which fixed the time limit under Section 18 cannot be said to have become functus officio after passing the eviction order. It can extend time applying principles of Section 148 of Code of Civil Procedure. That being so, the Court which prescribes the time limit has the discretion to revise the time schedule in appropriate cases. It can extend time applying principles of Section 148 of Code of Civil Procedure. That being so, the Court which prescribes the time limit has the discretion to revise the time schedule in appropriate cases. The appellate Court, which has power coterminus with that of the trial Court has the power to modify the time limit specified by the trial Court or fix time limit where trial Court has not done so. Such power must inhere in the second Appellate Court also. ( 15 ) THE first Appellate Court which passed the eviction order in this case specified the dates as required by Section 18 of the Act. This Court on 29-3-90 stayed dispossession of the tenant from the premises. On 11-10-90 the learned single Judge modified the order by stating that if the tenant surrenders the building on 31-12-90, he will be entitled for re-entry if ultimately the Court is found to have power to refix the date. We have not been told by either of the parties that the tenant has surrendered possession or has not surrendered possession or that the eviction order has been executed or has not been executed. ( 16 ) IN the circumstances of the case we are of the opinion that the time should be re-fixed by this Court. ( 17 ) WE dispose of the appeal directing that the tenant shall vacate the building if he has not already done so on or before 31-10-94 and the landlord shall complete the work on or before 31-10-95. The landlord shall put the tenant in possession on or before the end of November, 1995. Parties shall bear their own costs. Order accordingly. .