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Chandrashekhar Jaikishan Bajpai Vs. Niyamatram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 17 of 1971
Judge
Reported inAIR1972MP122; 1972MPLJ770
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 18; Code of Civil Procedure (CPC) , 1908 - Sections 151 and 152
AppellantChandrashekhar Jaikishan Bajpai
RespondentNiyamatram
Appellant AdvocateB.G. Apte, Adv.
Respondent AdvocateK.L. Batham, Adv.
DispositionApplication allowed
Excerpt:
.....to the landlord on or before 21-5-1967. the learned additional district judge while dismissing the appeal of the applicant directed the applicant to handover possession to the landlord (non-applicant) not later than 15-9-1967. this court while dismissing the second appeal of the applicant, however, failed to specify the date for delivery of possession by the applicant as required by sub-section (1) of section 18 of the act. the appellate court can step in to perform this duty where the trial court has failed to do so. there is all the more reason why it should perform this duty suo motu where there was no failure on the part of the courts below. 6. where the date specified by the courts below under sub-section (1) of section 18 has become meaningless as a result of the appeal it is the..........to the landlord on or before 21-5-1967. the learned additional district judge while dismissing the appeal of the applicant directed the applicant to handover possession to the landlord (non-applicant) not later than 15-9-1967. this court while dismissing the second appeal of the applicant, however, failed to specify the date for delivery of possession by the applicant as required by sub-section (1) of section 18 of the act. the possession has since been delivered but the contention of the learned counsel for the applicant is that he is very much prejudiced because no date was specified in the order of this court with the result that he cannot claim the benefit of sub-section (2) of section 18 of the act. he, therefore, prays that the time limit for handing over possession may be.....
Judgment:
ORDER

S.M.N. Raina, J.

1. This is an application under Section 152 read with Section 151 of the Code of Civil Procedure.

2. The non-applicant filed a suit against the applicant for eviction on arrears of rent. The suit was decreed by the trial Court, and the decree was maintained in first as well as in second appeal. As eviction was sought under Clause (h) of Sub-section (1) of Section 12 of the M.P. Accommodation Control Act. 1961, (hereinafter referred to as the 'Act') on the ground that the accommodation was required for the purposes of rebuilding the house, the applicant was entitled to the benefit of the provisions of Section 18 of the Act. Section 18, reads as under:--

'18. Recovery of possession for repairs and re-building 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 tenant 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 specified in the order, the landlord shall, on the completion of the work of repairs or building or re-building 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 building or re-building 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.'

3. Under Sub-section (1) of Section 18 the Code while making order of eviction on the grounds specified in Clause (h) of Sub-section (1) of Section 12 is bound to ascertain from the tenant as to 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 the Court has to record the fact of election in the order and to specify therein the date on or before which he shall deliver possession to the landlord to enable him to commence construction work. Sub-section (2) provides that if the tenant delivers possession on or before the date specified in the order the landlord shall on completion of work of construction place the tenant in occupation of the accommodation within one month of the completion of such work.

4. In the instant case the applicant having made the election the trial Court while passing a decree for eviction directed the applicant to handover vacant possession of the euit accommodation to the landlord on or before 21-5-1967. The learned Additional District Judge while dismissing the appeal of the applicant directed the applicant to handover possession to the landlord (non-applicant) not later than 15-9-1967. This court while dismissing the second appeal of the applicant, however, failed to specify the date for delivery of possession by the applicant as required by Sub-section (1) of Section 18 of the Act. The possession has since been delivered but the contention of the learned counsel for the applicant is that he Is very much prejudiced because no date was specified in the order of this Court with the result that he cannot claim the benefit of Sub-section (2) of Section 18 of the Act. He, therefore, prays that the time limit for handing over possession may be specified now so as to enable Mm to claim the benefit of Sub-section (2) of Section 18 of the Act.

5. The first contention of the learned counsel for the non-applicant is that the provisions of Section 18 are applicable only to the Court of first instance and not to the court of appeal, and, therefore, this Court cannot now specify the date for delivery of possession. I do not, however, find any substance in this contention. Section 18 confers a very valuable right on thetenant and casts a duty on the court to do the needful in order to enable him to exercise that right. A court of -appeal is invested with all the powers of the trial Court and where the trial Court fails to perform an important duty cast upon it by the legislature, the appellate court can itself perform that duty while dealing with an appeal. The appellate court can step in to perform this duty where the trial Court has failed to do so. There is all the more reason why it should perform this duty suo motu where there was no failure on the part of the Courts below.

6. Where the date specified by the Courts below under Sub-section (1) of Section 18 has become meaningless as a result of the appeal it is the duty of the appellate Court to specify a fresh date for the purpose of Sub-section (1) of Section 18. It is obvious that this Court failed to perform this duty through inadvertence while disposing of the appeal and this omission can now be rectified by this Court in exercise of its powers under Section 151 read with Section 152 of the Code of Civil Procedure. It is a cardinal principle of justice that no one shall be injured fay an act or omission on the part of the Court. The Court can, therefore, very well do the needful in exercise of its inherent powers under Section 151 as well as under Section 152, Civil P. C. The Court has inherent powers to act ex debito justitiae to do real and substantial justice which is its chief function. The applicant cannot, therefore, be denied the benefit of Sub-section (2) of Section 18 of the Act.

7. It was not disputed before me that the applicant did make an election as required by Sub-section (1) of Section 18. This Court should, therefore, have specified the date for delivery of possession under Sub-section (1) of Section 18 as the eviction has been ordered on the ground specified in Clause (h) of Sub-section (1) of Section 12 of the Act. This Court having failed to do so through inadvertence is competent to specify the date now. As the possession has already been delivered I specify the date on which possession was delivered as the date for delivery of possession for purposes of Sub-section (1) of Section 18 of the Act.

8. Accordingly, the petition is allowed. I make no order as to costs, in the circumstances of the case.


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