N.D. Ojha, J.
1. This Execution Second Appeal has been filed by the judgment-debtors. The facts relevant for the determination of this appeal are that the District Magistrate of Allahabad respondent No. 1 passed an order under Section 3 of the U.P. (Temporary) Accommodation Requisition Act No. XXV of 1947 (hereinafter referred to as the Act) on October 15, 1969 whereby he requisitioned portion of premises No. 34-A. Nawab Yusuf Road which were occupied by Smt. Jafra Khatoon as a tenant. The District Magistrate was further of the opinion that an alternative accommodation within the meaning of the last proviso to Section 3 aforesaid was available for being provided to Smt. Jafra Khatoon being portion of premises No. 179 Allengani, Allahabad. The said accommodation was allotted to Smt. Jafra Khatoon. The order of requisition was challenged by Smt. Jafra Khatoon in a writ petition (Civil Misc. Writ No. 4278 of 1969). The writ petition was however dismissed on February 18, 1970. Since Smt. Jefra Khatoon had failed to comply with the order of requisition the District Magistrate respondent No. 1 made an application to the Munsif West, Allahabad under Section 11 of the Act for the execution of the order passed by him under Section 3 of the Act as aforesaid Smt. Jafra Khatoon filed an objection which was dismissed and the appeal filed therefrom by her also failed. Thereupon she filed this Execution Second Appeal. Jafra Khatoon died during the pendency of the appeal and her legal representatives have been substituted.
2. When the appeal was pending before the lower appellate Court certain documents were filed as additional evidence and were accepted. One such document was the report of Senior Inspector (Rent Control) dated May 20, 1970 wherein it was mentioned that he made spot inspection of the portion of premises No. 179. Allenganj Allahabad allotted to Smt. Jafra Khatoon as an alternative accommodation in the morning of May 20, 1970 and found that even though the accommodation in question existed intact the tiles of the rooms and the verandah etc. had been removed by the landlord. On the basis of his report it was urged before the lower appellate Court that since the alternative accommodation had been rendered uninhabitable by its landlord the judgment-debtor could not be elected in execution of the order passed under Section 3 of the Act. This objection however, did not find favour with the learned Additional District Judge end he dismissed the execution first appeal.
3. Before this Court also learned counsel for the appellant reiterated the aforesaid objection. In addition it was also urged on the basis of the averments contained in paragraph 10 of the rejoinder affidavit filed in the application for stay that Sri G. S. Mathur for whom the accommodation in question had been requisitioned had already been given another suitable accommodation at 17, Stretchy Road, Allahabad and that consequently the purpose for which the requisition had been made stood exhausted, A statement was also made at the bar by the appellants' counsel that Sri G. S. Mathur has now been transferred from Allahabad and on that score too the order of requisition had exhausted itself. In support he placed reliance on H.A. Sarkies v. District Magistrate, Meerut, (AIR 1966 All 458). So far as this argument is concerned suffice it to say, that the facts stated in the rejoinder affidavit or the statement made from the bar cannot be used for the disposal of the execution second appeal inasmuch as it would amount to deciding the execution second appeal on fresh evidence for which neither an application has been filed nor the respondents have been given any opportunity of rebuttal. In Chaturbhuj Pande v. Collector, Raigarh, (AIR 1969 SC 255) certain documents were placed before the High Court after the conclusion of the arguments and were looked into by the learned Judges. It was held that if the High Court wanted to take into consideration fresh evidence it should have admitted the same in accordance with law and given an opportunity to the other side to rebut that evidence and that not having been done it was not open to the High Court to rely on those documents.
4. The argument of learned counsel for the appellants that the alternative accommodation allotted having become uninhabitable the appellants could not be ejected has. however substance. Under the last proviso to Section 3 of the Act it is incumbent upon the District Magistrate to provide an alternative accommodation to the person occupying the accommodation which has been requisitioned in case such person did not already have an alternative accommodation. In the instant case, the District Magistrate was satisfied that no alternative accommodation already existed for the needs of Smt. Jafra Khatoon and that she had to be provided for with an alternative accommodation. On this view a portion of 179, Allenganj was allotted to her. Consequently the order of requisition imposed obligations on both sides which were so conditioned that the performance by one was conditional on performance by the other. Section 11 of the Act lays down that if any person failed to comply with any order made under Section 3 the court shall on the application of the District Magistrate execute the order as if it was a decree passed by that court. The word court as defined by Section 2 (b) of the Act means the court of Munsif and where there is no Munsif, the court of Civil Judge in whose territorial jurisdiction the accommodation lies. On an application having been made by the District Magistrate respondent No. 1 under Section 11 in the court of the Munsif, West Allahabad for the execution of the order the position of respondent No. 1 was that of a decree-holder whereas that of Smt. Jafra Khatoon that of a judgment-debtor. In Jai Narain v. Kedar Nath, (AIR 1956 SC 359) it was held:--
'When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered unless the, party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree : a thing that an executing court cannot do.'
5. It has therefore to be seen as to whether the respondent No. 1 being the decree-holder is in a position to perform his side of the obligation. It cannot be denied that the tiles of the rooms and the verandahs having been removed by the landlord of the accommodation allotted to Smt. Jafra Khatoon the said accommodation was not habitable. No provision either under the Act or even under the U.P. (Temporary) Control of Rent and Eviction Act has been brought to my notice which could be pressed in service by the District Magistrate respondent No. 1 for compelling the landlord of the alternative accommodation to make the said accommodation habitable by getting its roof tiled. Section 7-E of the Rent Control and Eviction Act provides that the landlord is bound to keep an accommodation let out to a tenant wind-proof and water-proof. The provisions of the said section cannot be invoked by the District Magistrate but can be invoked only at the instance of the tenant by making an application to the Munsif under Sub-section (4) of the said section. If the repairs are such which could be carried out at a cost not exceeding one month's rent the tenant can do it himself after giving due notice, to the landlord under Sub-section (3) of the said section and deduct the expenses incurred from the amount of rent. The provisions of the said section are however available only to a tenant.
In Udho Das v. Prem Prakash (1963 All LJ 406) = (AIR 1964 All 1) (FB) a Full Bench of this Court interpreting the scope of an allotment order held:--
'The order issued by the District Magistrate does not confer any tenancy rights upon him, naturally he cannot become a tenant unless a contract of tenancy had been entered into between him and the landlord.'' Consequently before Smt. Jafra Khatoon could avail of the benefit provided by Section 7-E aforesaid it was incumbent on her to have entered into a contract of tenancy with the landlord of the accommodation allotted to her. The tiles of the rooms and the verandah having been removed by the landlord Smt. Jafra Khatoon could not be compelled to enter into a contract of tenancy with the landlord inasmuch as the accommodation had become uninhabitable. That apart, as already pointed out, the provisions of Section 7-E aforesaid could not be invoked by the District Magistrate and for purposes of the determination of this case it is only the authority of the District Magistrate which is relevant to be considered. The only provision which could be invoked by the District Magistrate is contained In Section 7-D of the Rent Control and Eviction Act which provides that no landlord shall without just or sufficient cause cut off or withhold any of the amenities enjoyed by the tenant. Firstly, even for invoking the powers of the District Magistrate under this section an application has to be made by the tenant. Smt. Jafra Khatoon, as already pointed out, had not, by the time when the tiles were removed from the accommodation, become its tenant. Moreover, the provisions of Section 7-D could not even otherwise be invoked for the purpose of getting the tiles placed over the rooms and the verandah.
In J. N. Verma v. Smt. Anis Begam, (1964 All WR (HC) 702) it was held:--
' Section 7-D applies only to amenities and not to repairs for which there exists the required provision in Section 7-E. 'Amenities contemplated by Section 7-D are what have been enjoyed by the tenant in addition to the use and occupation of the accommodation itself, that is. something in addition to the accommodation ...............
.........When a tenant is in use and occupation of an accommodation it cannot be said that he is in enjoyment of any amenity. Amenities are something which is not let out to him but of which he is allowed the enjoyment, such as the supply of water or electricity or a licence to use a pathway, garage, garden etc...........'
6. In this view of the matter it is clear that respondent No. 1 who stands in the position of a decree-holder was not in a position to perform his side of the obligation placed by the order of requisition and consequently the said order could not be executed. The objection of the appellant made in this behalf therefore deserves to be allowed.
7. Learned counsel for respondent No. 2 who is the landlord of the accommodation which was requisitioned urged that the objection aforesaid was barred by constructive res judicata as a result of the dismissal of the writ petition filed by Jafra Khatoon referred to above. I am, however, unable to agree with this submission. As already pointed out above, the Writ Petition was dismissed on February 18 1970 end the tiles of the alternative accommodation were removed by its landlord on or about May 20, 1970. This objection, therefore, was not available to Smt. Jafra Khatoon for being raised in the writ petition. It was then urged that the objection was barred by estoppel. Reliance was placed on an application made before the executing court on April 16, 1970 on behalf of Smt. Jafra Khatoon (paper No. 14/C) praying for time till May 10, 1970 to vacate the accommodation. In the said application she undertook to vacate the premises positively by May 10, 1970 even if the alternative accommodation which was offered to her was not given. From a perusal of the record of the court below it, however, appears that on the margin of 14/C an endorsement was made by the learned counsel for respondent No. 1 that the application was opposed. The prayer contained in the said application was not granted on April 16, 1970 and the said application was ultimately ordered to be filed on May 23, 1970 inter alia on the ground that the time prayed for had already expired. Under these circumstances if Smt. Jafra Khatoon on April 18, 1970 decided to press her objection and did, in fact, do so her objection could not be dismissed on account of the aforesaid undertaking as on the face of it the ingredients of estoppel were not made out. See Dhiyan Singh v. Jugal Kishore, (AIR 1952 SC 145).
8. In the result the appeal succeeds and is allowed. The objection of the apnellant is allowed and the application for execution of the order of requisition is dismissed. In the circumstances of the case, however, there will be no order as to costs.