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Lawrence Mascarenhas Vs. Ignatius Pereira - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 1023 of 1969
Judge
Reported inAIR1973Kant324; AIR1973Mys324; ILR1973KAR798; (1973)2MysLJ105
ActsMysore Rent Control Act, 1961 - Sections 21(1), 27 and 28
AppellantLawrence Mascarenhas
Respondentignatius Pereira
Appellant AdvocateK.R. Karanth, Adv.
Respondent AdvocateB.P. Holla, Adv.
DispositionAppeal allowed
Excerpt:
- constitution of india -- article 226: [ram mohan reddy,j] writ of quo warranto - election to membership of gram panchayat - second respondent, contested the election - production of bcm b caste certificate - false claim made by the second respondent that he belongs to bcm b category, though he belonged to bcm a category - cancellation of the caste certificate issued to the second respondent prayer for a writ of quo- warranto to oust the second respondent from the post of member of the gram panchayat held, reservation, is a part of constitutional scheme with the object of betterment of backward classes. therefore, if, a person who does not belong to a particular backward class for which the elective office is reserved, and masquerades as a person belonging to said category and gets.....k. bhimiah, j.1. the plaintiff has filed this second appeal against the order passed by the civil judge. mangalore. in r. a. no. 22 of 1969 dismissing the plaintiff's appeal filed against the judgment and decree passed by the munsiff at mangalore in o. s. no. 170 of 1965 dismissing the plaintiff's suit for declaration that he is entitled to occupy thr plaint schedule premises as a tenant on fair rent to be fixed by the court end for possession of the plaint schedule premises marked in red colour in the plaint plan 2. the plaintiff's case as revealed by the plaint, is that he was a tenant in respect of the premises bearingno, 13-658 ts no. 188/2, 13th ward. mangalore municipality, on a monthly rental of rs. 25/- as per the rent bond dated 22-2-1958. the defendant obtained transfer of the.....
Judgment:

K. Bhimiah, J.

1. The plaintiff has filed this second appeal against the order passed by the Civil Judge. Mangalore. in R. A. No. 22 of 1969 dismissing the plaintiff's appeal filed against the judgment and decree passed by the Munsiff at Mangalore in O. S. No. 170 of 1965 dismissing the plaintiff's suit for declaration that he is entitled to occupy thr plaint schedule premises as a tenant on fair rent to be fixed by the court end for possession of the plaint schedule premises marked in red colour in the plaint plan

2. The plaintiff's case as revealed by the plaint, is that he was a tenant in respect of the premises bearingNo, 13-658 TS No. 188/2, 13th Ward. Mangalore Municipality, on a monthly rental of Rs. 25/- as per the rent bond dated 22-2-1958. The defendant obtained transfer of the premises and the leasehold rights under a sale-deed dated 16-3-1963 and filed an application in R.C.O.P. No. 244/63 for eviction against the plaintiff under Section 21 (i) of the Mysore Rent Control Act 1961 (to be hereinafter referred to as the Act) on the ground that the defendant required the premises for immediate purpose of demolishing and reconstruction. The application was allowed directing the plaintiff to surrender possession of the premises for the purpose of demolishing and erection of a new building. The plaintiff surrendered possession of the premises on 8-4-1964. The plaintiff. as required under the provisions of Section 27 of the Act issued 6 notice to the defendant within the period allowed by lew soon after the demolition of the building expressing his willingness to pay fair rent and to occupy the new premises. The defendant gave evasive reply to the notice. His further contention is that the defendant failed to comply with the provisions of Sub-section (b) of Clause (2) of Section 28 of the Act by not placing the plaintiff in occupation of the new building which was erected on the site of the old building. The omission on the part of the defendant according to the plaintiff, is illegal and criminal.

His case is that he was in the old premises door No. 658 having had continuously for a period of over 10 years a book-seller's shop and that he had established his trade in this premises and had acquired a large number of customers. He kept the books end furniture in his house. This discontinuance of the business has caused him great hardship. He has also alleged that the defendant is negotiating to lease out the premises to someone else. Therefore, he contends that he was constrained to file the suit for declaration that he is entitled to occupy the premises in question and for possession of the premises shown in the schedule which was erected on the site of the old building occupied by him as tenant thereof, on a fair rent. Hence the suit.

3. The defendant has filed a lengthy written statement. He has disputed the dimension of the shop which was in the occupation of the plaintiff. He has asserted that the eviction of the plaintiff was not only under Section 21 (i) but also under Section 21 (h) of the said Act. His complaint is that the plaintiff did not surrender the premises even after due date and that he got delivery of premises of 14-4-1964 through court process, and, therefore, according to him the plaintiff is disentitled to any relief conferred on him by Section 27 of the Act. He has also denied his liability to intimate the plaintiff within 3 months before the date of the completion of the new building. He has pleaded that the ground floor was occupied by the defendant himself and since his son Charles contributed funds for the construction of the building, he is carrying on business under the name and style 'Chapitel'. He has denied that the plaintiff is entitled under any circumstances to obtain possession of the building on the site door No. 658 on the ground floor as required under Section 28 of the Act. He has admitted that the plaintiff was running a book stall in door No. 658 which measured 6' in width in front, 3' long and 3' broad at the back inclusive of the verandah. He has also averred that the plaintiff has got alternative premises opposite the Maidan and that he has been running his business there He has also denied that the premises coloured red in the plan was the premises occupied by him formerly.

4. On these pleadings, the trial Court framed the following issues for decision:--

(1) Plaintiff to prove that he is entitled to occupy the schedule premises as a tenant.

(2) Defendant to prove that the plaintiff is not entitled to the declaration as the premises have lost the identity

(3) To what reliefs.

An additional issue was also framed as under:--

(4) Defendant to prove that this court has no jurisdiction to try the suit,

5. The learned Munsiff on a consideration of the material on record. held that the plaintiff has got right of accommodation in the new building put up by the defendant. He rejected the contention of the defendant that the plaintiff is not entitled to the benefit of the provisions of the Act since the plaintiff had disobeyed the orders of the court by not delivering the Possession on 8-4-1964. There is a clear finding that possession of the premises was obtained under Section 21 (i) (j) of the Act and the rights of the parties are to be determined as per the provisions of Sections 26 27 and 28 of the Act and not under any other section of the Act. In this view of the matter, the learned Munsiff held that the tenant should not be deprived of the benefits under the provisions of Sections 26, 27 and 28 of the Act. Further, the Munsiff held that the plaintiff is not disentitled to occupy the premises on the ground that the premises lost their identity. But curiously enough, the learned Munsiff dismissed the suit of the plaintiff on the ground that though the defendant was willing to accommodate the plaintiff in the upstairs the plaintiff has not asked for the alternative relief and that he is not entitled to occupy the suit schedule premises as prayed for by him in the suit. The learned Munsiff has characterised the claim of the plaintiff's relief as misconceived and has found that he is not entitled to the said relief under the provisions of Sections 26, 27 and 28 of the Act.

6. Aggrieved by the order of dismissal of the suit the plaintiff filed an appeal against that order in the court of the Civil Judge at Mangalore. In the course of his judgment, the learned Civil Judge has elaborately reproduced the pleadings, but there is hardly any discussion of the issues involved in the case. However, he has affirmed the findings of the Munsiff. The learned Civil Judge has found that the plaintiff has not made out a case entitling him to occupy a portion of the building in question in the ground floor and therefore opined that the trial Court's order did not call for interference and dismissed the appeal filed by the plaintiff without costs.

7. The principal question for decision is. whether the tenant who has been evicted under the proviso (i) to Sub-section (1) of Section 21 of the Act is or is not entitled to occupy the tenement in the new building after demolition and reconstruction.

8. Mr. Karanth learned Advocate for the plaintiff, firstly contended that the plaintiff has acquired a statutory right to occupy a portion of the new building in the ground floor in view of the fact that the decree for eviction against the plaintiff was passed by the court on the ground specified in clause (j) of the proviso to Sub-section (1) of Section 21 of the Act and that after the erection of the new building by the defendant the plaintiff has complied with the requirements of Section 27 of the Act by issuing a notice to the landlord of his intention to occupy & portion of the new building on its completion. Nextly, he contended that since the landlord has failed, without reasonable excuse to comply with the provisions of Sub-section (1) of Section 28 of the Act by placing the tenant in the occupation of the building, the plaintiff is entitled to get a decree as prayed for in the suit. Thirdly, he contended that the courts below have misconceived the plaintiff's suit and misdirected themselves on the Question of relief in dismissing the plaintiff's suit for the declaration and possession. His next contention is that the courts below while holding that (sic) both the issues raised in the suit in favour of the plaintiff have dismissed the suit on the ground that the plaintiff had not sought for alternative relief for accommodation in the upstairs which ground, according to Mr. Karanth is neither pleaded nor any issue raised, nor is it based upon evidence. Therefore, he urged that since both the courts below have misconceived the reliefs and misdirected themselves upon questions of fact and of law their findings call for interference by this court in the exercise of powers under Section 100 of the Code of Civil Procedure.

9. On the other hand, Mr. Holla learned advocate for the defendant, firstly contended that the plaintiff is not entitled to any relief when he failed to deliver possession of the old tenement within time. Secondly, he contended that as the relief sought for by the plaintiff is not in accordance with the provisions of Sections 27 and 28 of the Act, the courts below have rightly declined to grant the relief. Thirdly he contended that the plaintiff, according to Section 27 of the Act is required to occupy the whole or part which is a complete unit. Fourthly, he contended that since the identity of the building is lost, the tenant is disentitled to any relief. Fifthly, as regards the question of maintainability of the suit. Mr. Holla contended that neither Section 26 nor Sections 27 and 28 expressly speak of either an application or the court before which such an application is to be filed. The original authority to entertain the application is the Munsiff and the District Judge is the appellate authority and not the Civil Judge- Therefore the suit and the appeal before the Munsiff and the Civil Judge respectively are not maintainable. Hence he urged that this appeal should be dismissed with liberty for the plaintiff to approach the proper authority under the law for the relief.

10. Taking the last contention of Mr. Holla on the question of maintainability of the suit before the Civil Court, it is no doubt true that the provisions of Sections 26, 27 and 28 of the Act are silent as to the forum in which the tenant who was evicted from the premises under the provisions of Section 21 (1) (j) is entitled to litigate his right to occupy the new building on completion. But it is well settled that where the right claimed is not purely a creature of a statute but is a common law right and the statute entrusting the special Tribunal with certain dispute relating to the right does not expressly oust the jurisdiction of the Civil Court wholly and the language of the statute does not in unmistakable terms make out that the right must only be exercised or enforced in a manner provided by the statute, the jurisdiction, of the Civil Court is not barred. It is also a general principle of law that where there is right there must be remedy 'Ubi jus ubi remedium'. In cases where the question of the exclusion of the Civil Court's jurisdiction is pleaded, the matter has to be considered in the light of the words used in the statutory provision on which the exclusion is rested. No attempt can be made to abridge the operation of a statute limiting the Civil Court's jurisdiction.

Neither the provisions of Section 27 nor the provisions of Section 28 of the Act expressly oust the jurisdiction of the Civil Court wholly Further those provisions do not in unmistakable terms lay down that the right must be exercised or enforced in any manner provided by the Act. Mr. Holla placed reliance on the decision of this court in F.M. Subbayya v. Venkataremana Subrao Barkur (AIR 1959 Mys 145) which has dealt with the matters connected with special Tribunal under Section 9 of the Civil Procedure Code. This decision does not assist the defendant's case in any way. On the other hand, it supports the case of the plaintiff. It is held therein that when a statute creates special rights and obligations it may or may not say anything about the courts in which such rights and obligations are to be litigated upon. If it says nothing on subject then if the rights created are civil rights the ordinary civil courts will have the general jurisdiction to try suits relating to such rights under Section 9 of the Code of Civil Procedure, unless of course the cognizance of such suits by ordinary civil courts is either expressly or impliedly barred, Therefore, in view of the above decision and also the principles governing matters of this type, the contention of Mr. Holla that the suit is not maintainable is devoid of any force and it fails.

11. Before considering the validity of the several contentions raised on behalf of the parties, it is necessary to bear in mind the provisions of the Act necessary to decide the issues raised in this appeal. Proviso (j) to Sub-section (1) of Section 21 of the Act reads as under:

'that the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished.'

Section 3 (n) of the Act defines the word 'premises' thus : --

' 'premises' means

(i) a building as defined in Clause (a)'. The word 'building' is defined at Section 3 (a) thus: -- ' 'building' means any building or part of a building or hut other than a farm house let or to be let separately for residential purpose'.

Section 27 reads as under:--

'Where a decree for eviction has been passed by a Court on the ground specified in Clause (i) of the proviso to Sub-section (1) of Section 21 and the work of demolishing the premises and of the erection of a new building has been commenced by the landlord the tenant may. within six months from the date on which he delivered vacant possession of the premises to the landlord, give notice to the landlord of his intention to occupy the new building on Its completion on the following conditions, namely:--

(a) that he shall pay to the landlord the fair rent in. respect of the building :

(b) that his occupation of the building shall, save as provided in condition (a), be on the same terms and conditions as the terms and conditions which he occupied the building immediately before the eviction.'

Section 28 of the Act reads as under:

'28 (1) On receipt of notice from the tenant under Section 27 the landlord shall not less than three months before the date on which the erection of the new building is likely to be completed, intimate the tenant the date on which the said erection shall be completed. On the said date, the tenant shall be entitled to occupy the building. (2) (a) If the tenant fails to occupy the building within a period of one month from the date on which he is entitled to occupy it under Sub-section (1). the tenant's right to occupy the said building under the said Sub-section shall terminate and the landlord shall be entitled to recover from the tenant, a sum equal to three times the amount of the monthly fair rent in respect of the building.

(b) If the landlord fails without reasonable excuse to comply with the provisions of Sub-section (1) or to place the tenant in occupation of the building he shall without prejudice to his liability to place the tenant in vacant possession of the building on conviction, be punished with fine which may extend to five hundred rupees.'

12. It is clear from the provisions of Section 27 that where a decree for eviction has been passed by the court on the ground specified in Clause (j) of the proviso to Sub-section (1) of Section 21 the tenant gets a statutory right to give notice to the landlord of his intention to occupy a tenement in the new building. Such notice expressing the tenant's intention to occupy the new building on its completion shall be given within six months from the date on which the tenant delivered vacant possession of the premises and erection of a new building has been commenced by the landlord. The tenant shall pay the landlord the fair rent in respect of the building. Section 28 requires that on receipt of the notice from the tenant under Section 27. the landlord shall, not less than three months before the date on which the erection of the new building is likely to be completed, intimate the tenant the date on which the said erection shall be completed and on which date the tenant shall be entitled to occupy the building.

The parties no doubt dispute the date on which the plaintiff delivered vacant possession of the premises to the defendant. The plaintiff asserts that he delivered possession on 8-4-1964 whereas the defendant asserts that it was delivered on 14-4-1964. Whatever that may be. the fact that the plaintiff issued a notice as per Ex. A (1) dated 18-8-1964 calling upon the defendant to deliver possession of the premises in his occupation as soon as the reconstruction was completed is not disputed. Thus it is clearly established that the plaintiff has satisfied the requirements of Section 27 in giving the notice to the defendant within the period allowed by the statute. But the landlord has failed to comply with the requirements of the provisions of Section 28 of the Act. The defendant in his reply dated 1-10-1964 marked as A2 has given an evasive reply. The building was fit for occupation on 31-3-1965 but there is no mention of this date in Ex. A-2. Thus the defendant has failed to comply with the mandatory provisions of Section 28 of the Act. Further, it is clear from the common order passed in RCOPS Nos. 244/63, 245/63 and 252/63 on the file of the Munsiff of Mangalore. which is marked as EX. A-8 that the petitions for eviction were allowed on the ground that the landlord (defendant) reasonably and bona fide required the suit schedule premises for the immediate purpose of demolition and reconstruction and the said demolition is to be made for the purpose of erecting a new building in the place of the premises sought to be demolished. The relief was granted to the landlord (defendant) under the provisions of Section 21 (1) proviso (j) of the Act. In the course of the order at para 6, the learned Munsiff has observed as follows: --

'The petition it may be seen hasbeen filed under Section 21 (j) (i) and(h) of the Mysore Rent Control Act,1861. But since the petitioner avers thathe wants the eviction of the respondents only for the purpose of demolition of the existing building end for reconstruction, the provisions of law that are quoted namely Sub-sections (i) and (h) of Section '21 of the Mysore Rent Control Act. 1961 may not be quite appropriate so far as the facts of the case so and this also has been conceded by the learned counsel for the petitioner.'

The plaintiff was the respondent in RCOP No. 244 of 1963. It is clear from the above that the request of the landlord (defendant) in that RCOP for the relief under Section 21 (i) and (h) that the premises were reasonably and bona fide required by the landlord (defendant) for occupation by himself was not granted. Since the relief to the landlord (defendant) was granted under the provisions of Section 21 (1) (j), the provisions of Sections 27 and 28 are clearly attracted. As already stated above the provisions of those sections entitle the tenant (plaintiff) to occupy the new building provided the tenant satisfied the requirements of Section 27 by giving a notice to the landlord (defendant) of his intention to occupy the tenement in the new building. It has already beer, held that the plaintiff (tenant) has complied with the requirement of Section 27 of the Act and the defendant-landlord has failed to comply with the provisions of Section 28 of the Act.

13. Surprisingly enough, the defendant in the course of his objections filed in reply to the R. I. A. No. 868 of 1965 which was filed by the plaintiff for the issue of a temporary injunction restraining the defendant from leasing out the plaint schedule premises to third parties has stated in para. 4 of the objection statement as follows:--

'The defendant's replies to the plaintiff's notices contain a correct statement of facts. It is denied that the new building was completed on 31-3-1865. As a matter of fact, the work of the building is still continuing. The ground floor of the building has been occupied bv the defendant and his son even before the date of the suit and injunction order. The defendant's son has stocked goods exceeding Rs. 10,000/- in value and is carrying on the business on the ground floor.'

The defendant having got no relief of personal occupation of the promises in R. C. O. P. No. 244 of 1963. which was in the occupation of the plaintiff has committed a blatant violation of the law in his failure to give notice of the completion of the building and allow the tenant to occupy the new building. When the order of eviction is passed under the provisions of Section 21 (1) (j) of the Act and when the tenant has complied with the provisions of Section 27 of the Act, the tenant has acquired a statutory right to occupy the area o the building that was in his possession before the demolition. The landlord who got the order of eviction under Section 21 (1) (j) has no right to utilise the accommodation in the newly erected building for himself or rent it out to others before the requirements of his previous tenants are met when ail or anyone of them expressed their willingness to occupy the building as required by law after it is newly erected. The conduct of the landlord (defendant) in the instant case in allowing his son to occupy the ground floor and in denying the tenant's (plaintiff's) statutory right cannot be countenanced by the Courts of law.

14. The resultant position in law is that the plaintiff has acquired the statutory right to occupy an area which was in his occupation before the demolition after the new building is erected by the defendant. This is so because the definition of premise means a building (sic) is defined to include pari, of the building let or to be let separately for residential purposes,

14-A. Both the Court-: below have rightly upheld the right of the plaintiff in this regard but while considering the question whether the plaintiff is entitled to the suit premise: as tenant unfortunately both the Courts below have misdirected themselves and have reached the conclusion contrary to law by perverse consideration of the evidence and by tortious reasoning. The trial Court, while consider in the question whether the plaintiff is entitled to the suit Schedule premises as a tenant, has observed in the course of its judgment in para. 11 as follows:--

'Though I hold that he is entitled for possession, it is not possible for the reasons stated above, for this Court to hold that he is entitled to occupy the suit schedule premises a.-: tenant, and since there is no alternative relief pray-pd for by the defendant to give accommodation to him in the new premise;; constructed by the defendant and since it is not possible to give him the relief he wants in. this suit I hold though the plaintiff is entitled be accommodation in the new building be is not entitled to occupy the suit schedule premises as prayed for by him for the reasons already stated by me. I hold to this extent the plaintiff claiming this particular relief has misconceived his remedy and has claimed relief to which he is not entitled under the provisions of Sections 26, 27 or 28 of the Mysore Rent Control Act.'

The finding of the trial Court is not based upon any plea or evidence in the suit. It is nobody's case that the defendant had offered alternative accommodation in the upstairs in the suit proceedings, as the learned Munsiff has stated that the advocate for the defendant in the course of argument has brought to the notice of the Court that the defendant is willing to accommodate the plaintiff in the upstairs. The learned Munsiff appears to have taken support for this sub-mission from what has been stated in Ex. B-1 certified copy of the deposition of the defendant in the RCOP. The learned Munsiff has wrongly read the deposition, Ex. B-1 of the defendant in that RCOPs. This is what the defendant has stated in the course of his deposition :

'The respondent in RCOP No. 245 of 1963, is also my tenant. He has executed the Badge chit Ex. A-8. I have issued notice Ex. A-9. Ex. A-10 is its acknowledgment. I am prepared to give a room to this respondent in the upstairs if he vacates the building. (B. N. R. says that his client is willing to vacate on the above assurance).'

It is clear from the above evidence given by the defendant that he has deposed before the Court that he was willing to give accommodation in the upstairs to the respondent in RCOP No. 245 of 1963. The present plaintiff was the respondent in RCOP No. 244 of 1963. Nowhere in the course of the deposition of the defendant, is there any mention that he was willing to give accommodation to the plaintiff who was respondent in RCOP No. 244 of 1663. The learned Munsiff is wholly wrong in assuming that the defendant had offered alternative accommodation in the upstairs to the plaintiff. Therefore his finding that the defendant had offered alternative accommodation in the upstairs to the plaintiff is based upon a wrong reading of Ex. B-1. The learned Civil Judge has also committed the same error and has gone a step further that the plaintiff has not challenged that order by wav of appeal or revision. The learned Civil Judge has observed in the course of his judgment at para 8 as follows:--

'Defendant-petitioner has stated in R. C. O. 244/63 that he cannot give any room to the plaintiff respondent except in the upstairs and this fact has been observed by the trial Court in para 12 of its judgment that the defendant-petitioner had offered the alternative accommodation (i.e., upstairs). In case the respondent-plaintiff was aggrieved by the said offer and order, he ought to have challenged his said order by way of appeal or revision but he has not done so. The plaintiff has mentioned in para III (d) of his plaint that the defendant had offered to give alternative accommodation to him in the new premises erected by him as per the observation in the order dated 24-3-1964 in R. C. O. 244/63. In that case, plaintiff has not claimed the said alternative accommodation by way of relief.'

These observations are wholly wrong and not based upon a proper reading of Ex. B-l and Ex. A-8 as already pointed out above- As one could read, the alternative accommodation as understood by the defendant (sic) and as stated in paragraph III (d) of his plaint cannot be alternative accommodation in the upstairs. As already pointed out. there is no such evidence given by the defendant with reference to the plaintiff in the R. C. O. P. proceedings. The alternative accommodation, according to the plaintiff is the one that would be available to him in the area which was in his occupation after the new premises was erected by the defendant. Thus both the Courts below hove on assumptions and surmises negatived the relief asked for by the plaintiff on the ground that it was not pleaded or proved by the defendant. Therefore, the finding of the learned Civil Judge affirming the finding of the trial Court on this point is vitiated. Therefore, the judgment and decree of the Civil Judge calls for interference.

The next question for decision is whether the plaintiff is entitled to the relief which he has sought for in the plaint. The plaintiff's prayer in the plaint is for a declaration that he is entitled to occupy the plaint schedule premises coloured reed in the plaint plan which measures 10' 41/2'X9' 9' in the ground floor of the newly constructed premises. The defendant has disputed this and stated in para 13 of his written statement that the plaintiff had occupied a portion of the building which was a pent-roof of the main building. 6 ft. in breadth in front 3 ft. long and 3ft. broad at the back including the verandha. Thus the defendant has disputed even the area which was occupied by the plaintiff before the building was demolished. The area of the building to which the plaintiff is entitled will be presently considered. Before that it is necessary to consider the contentions of Mr. Holla that the plaintiff is totally disentitled to get any relief in the suit.

15. Mr. Holla, learned advocate for the defendant, argued that the plaintiff is disentitled to get the relief sought for in the plaint on three grounds. Firstly, he contended that the plaintiff did not vacate the premises as directed by the Court in the eviction ordered marked Ex. A-8 within 15 days. He urged that the defendant secured possession of the building for demolition and reconstruction after taking out execution proceedings in the RCOPS. Secondly, he contended that in the new building erected by the defendant there is no tenement comprising of the area that was in the occupation of the plaintiff, as there is one hall constructed in the ground floor and as the identity of the old building is lost the plaintiff has no right to seek for the occupation of any portion in the newly constructed building. He urged that the defendant was willing to accommodate the plaintiff in one of the rooms in the upstairs and that the plaintiff is unwilling to occupy that room. Thirdly, he contended that after the plaintiff vacated the building, he has secured accommodation elsewhere and has been running his business in that premises. As such, in view of his securing alternative accommodation, he is not entitled to occupy any portion of the building newly erected by the defendant. These contentions, in my opinion, are devoid of all force.

16. While meeting the first contention of Mr. Holla. Mr. Karanth invited my attention to the specific prevision in relation to the recovery of possession in oases where the order of eviction has been passed under the provisions of Section 21 (1) (i) for carrying out repairs which cannot be carried out without the premises being vacated. Section 24 lays down.

'24 (1) The Court shall when passing a decree on the ground specified in clause (i) of the proviso to Sub-section (1) of Section 21 ascertain from the tenant whether he elects to be placed in occupation of the premises 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 decree and specify in the decree the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs.'

It is clear from the above that Section 24 provides for a day to be specified in the decree on or before which the tenant shall deliver possession so as to enable the landlord to commence work of repairs. If the tenant fails to comply with the direction in the order of eviction passed under Section 24 the section does not say that the tenant forfeits his right of re-entry. When that is the position of law with regard to the tenant's right of re-entry, it can hardly be said that the order of eviction passed by the Court on the around specified in Clause (j) of the proviso to Sub-section (1) of Section 21 takes away the tenant's right to occupy the new building.

It is significant to note that neither in Section 21 (1) (j) nor in Section 26 the Court is empowered to specify a date in the decree for eviction passed by it. The direction in the order of eviction marked at Ex. A-8 to the tenant to deliver possession within 15 days has no legal force. Even in cases where the eviction order is executed and delivery of possession is taken on the ground specified in Clause (j) of the proviso to Sub-section (1) of Section 21 by resorting to execution proceedings, the statutory right of the tenant under Sections 27 and 28 of the Act does not come to an end. The decision in : [1961]1SCR600 . (Ramnath v. Ram Nath Chittarmal) relied upon by Mr. Holla does not bear on the facts of this case, as in that case there was a compromise decree and the terms of the decree were clear that both the parties agreed to those terms with regard to the delivery of possession on a 'particular date and the defendants failed to comply with the terms of the contract and therefore it was held that they were disentitled to the benefit under Section 15 (3) of the Delhi and Ajmer Rent Control Act. Therefore, the first contention of Mr. Holla has no merit.

17. Now turning to the second contention of Mr. Holla that the premises has lost its identity and therefore the plaintiff is not entitled to accommodation in the newly constructed premises, has no substance. It is not uncommon that every building that is reconstructed is bound to lose its identity and this cannot be made a ground to defeat the right of the tenant conferred on him by the provisions of Sections 27 and 28 of the Act. The law precludes the landlord (defendant) from raising such a contention to defeat the right of the tenant under the Act.

18. Now taking the last contention of Mr. Holla that the plaintiff has secured an alternative accommodation before the vacation of the premises in occupation and demolition of the building to run his business it is no ground to deny him the right to re-occupy the area that was in his possession in the newly constructed building. When the plaintiff was running a business of selling newspapers for his livelihood it is too much to expect of the plaintiff to close down his business until the defendant constructed the new building and re-occupy the premises and run the business there. Human nature being what it is. no businessman is expected to close down his business and keep waiting to occupy the premises in the new building ff the plaintiff even after reoccupying the premises in the new building to which he is entitled under the law continues to have the same business running in another premises, then it is open to the defendant in a separate proceeding to contend that the plaintiff has got alternative accommodation and that he should be evicted from the premises in his occupation after the defendant complied with the provisions of Sections 27 and 28 of the Act. Before complying with the provisions of Section 28 such a contention on the part of the plaintiff is untenable in law. Therefore, this contention also fails.

19. Now the substantial question for decision is whether the plaintiff is entitled to get the area shown in plaint plan or he is entitled to get only 6' X 3' as contended by the defendant. The plaintiff in the course of his evidence as P. W. 1 has stated that the dimensions of his shop were: front 10' side 8' and back' side 12'. He had kept 5 shelves electric fittings and cash counter in that shop and had stocked approximately 1500 books which were worth about Rs. 5,000 to 6.000/-. In the course of cross-examination, it has been elicited that the shelves were about 4'X5' and 9' in breadth. He was not able to give dimensions of each shelf. The counter was 4' X 3' and there was space in the middle but the exact area the plaintiff was not able to give. He has stated that he had no records to show that he had 1,500/- books. Barring this, no answer has been elicited to challenge his evidence . about the dimension of the shop which was 10' 41/2'X8' on the side end 12' on the beck side. It is also elicited in the course of cross-examination that the plaintiff has asked for 100 square feet in the same place where his shop was formerly situated.

The defendant has not offered himself for examination but has got his son examined as D. W. 1. He has stated that the plaintiff was given a space of 6' breath, front 3' length at the back and 3' in width. He has further stated that the space occupied by the former shop of the plaintiff has been left open while putting up the new building- In the course of cross-examination, he has stated that he .did not know whether there were five shelves in that shop and how many books he had kept there. In the Course of the written statement, the defendant has not stated anywhere that the area in the occupation of the plaintiff is kept open in the new building. His son D. W. 1 has introduced a new theory that the area in the occupation of the plaintiff has been left open while putting up the new building. This appears to be a patent He. Since the plaintiff's evidence that he was in occupation of 8'X8'X12' with five shelves and 1500 books worth Rs. 5,000 to 6,000 has remained unchallenged and the evidence of the defendant's witness D. W. 1 that the area in the occupation of the plaintiff has been kept open is held to be untrue, it must be held that the plaintiff is entitled to get approximately an area of 10' X 10' in the newly constructed premises. What has been shown in the plaint plan is 10' 41/2 X 9' 9' which approximately compares with the area occupied by him before the demolition of the building. It must therefore be held that he is entitled to get a portion measuring 10' 41/2' X 9' 9' '.

20. The next question for determination is whether the defendant has a right to give any portion of the newly constructed building to the plaintiff in the upstairs. Mr. Holla strenuously contended that such a choice is open to the defendant under the law, but he is unable to point out any provision of the Act which gives the defendant-landlord any such right. One must remember that before the demolition of the building in question, there was no upstairs. The plaintiff was occupying a portion determined above in the ground floor. It must therefore logically follow that he is entitled to that area carved out in the ground floor and not anywhere else. The entitlement of the plaintiff for the accommodation is in relation to the place and the area in which his former tenement was situate. The defendant, in my opinion, has no right to offer to the plaintiff any area of his choice. He is bound in law to give the plaintiff the approximate area which was in his occupation on which the new building has been constructed. Therefore. I hold that the plaintiff is entitled to the relief of declaration that he is entitled to get the plaint schedule premises as tenant thereof on a fair rent to be fixed by the Court and for possession of the plaint schedule premises which has been coloured red in the plaint plan.

21. For the reasons stated above, the judgment and decree of both the Courts below are hereby set aside and the plaintiff's suit is decreed as prayed for. The appeal is allowed with costs throughout.


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