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Bhagwan Singh Vs. Mst. Kallo Maula Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 56 of 1972
Judge
Reported inAIR1977MP257; 1977MPLJ583
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12(1), 17(2), 18, 18(2), 18(3) and 31; Code of Civil Procedure (CPC) , 1908 - Sections 2(2) and 96
AppellantBhagwan Singh
RespondentMst. Kallo Maula Shah and ors.
Appellant AdvocateB.M. Agarwal, Adv.
Respondent AdvocateP.N. Aneja, Adv.
Cases ReferredBala Saheb v. Laxman Rao
Excerpt:
.....which cannot be carried out without the accommodation being vacated. 19. it may be noted that where an application for re-entry under section 17 of the act is made by a tenant before the rent controlling authority which may either direct the landlord to put the tenant in possession of the accommodation or pay him such compensation as he thinks fit, the order passed on such an application is appealable under section 31 i may read here sections 17 and 31 to bring out the point clearly:.....provisions of the act bearing on the point.12. section 12 deals with restriction on eviction of tenants. clauses (g) and (h) of sub-section (1) of section 12 read as under:--'12. restriction on eviction of tenants--(1) notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:-- (a) ... (b) ... (c) ... (d) ... (e) ... (f) ... (g) that the accommodation has become unsafe, or unfit for human habitation and is required bona fide by the landlord for carrying out repairs which cannot be carried out without the accommodation being vacated. (h) that the accommodation is required bona fide by the landlord.....
Judgment:

C. M. Lodha, J.

1. The following question has been referred by one of us (U. N. Bhachawat J.) to a larger Bench:--

'Whether an order passed on an application under Section 18 (3) of the Madhya Pradesh Accommodation Control Act is appealable or revisable?'

2. Briefly stated the facts giving rise to the revision are these:--

The plaintiff non-applicant filed a suit in respect of the house in question against the applicant and non-applicant No. 3 (hereinafter referred to as the defendants) on the ground that the accommodation had become unsafe for human habitation and was required, bona fide by the landlord for carrying out repairs which could not be carried out without the accommodation being vacated. The fourth Civil Judge, Class II, Gwalior decreed the suit on 24-2-1967 in the following terms:-- 'The defendants Nos. 1 and 2 do place the plaintiff in vacant possession of the suit house by 24-2-1966 to enable them to do the repairs. After the defendantsdelivered possession as directed above the plaintiff do place the defendants in occupation of the suit house within one month of the completion of the said work.'

3. Aggrieved by the judgment and decree of the trial court the defendants filed appeal which was dismissed by the Second Additional District Judge, Gwalior who directed the defendants to hand over possession of the house to the plaintiff on or before 5-10-1966, It appears that by mutual agreement the time for delivery of possession of the house to the plaintiff was extended up to 15-10-1966 and before that date the defendants handed over possession of the house to the plaintiff on 12-10-1966.

4. On 25-1-1967 the defendants made an application before the Fourth Civil Judge, Class II, Gwalior under Section 18 (3) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as the Act) alleging that though the plaintiff had completed the repairs on 30th November 1966 yet he had not delivered back possession of the accommodation to the defendants within one month of the completion of the repairs as directed in the decree. The defendants, therefore, prayed that the plaintiff landlord may be ordered to place the defendants in occupation of the accommodation.

5. The plaintiff resisted the defendants' application on a number of grounds. But the trial court by its order dated 16-3-1970 allowed the defendants' application and directed that the possession of the accommodation be restored to the defendants.

6. Aggrieved by the decision of the trial court the plaintiff filed appeal and the learned Third Additional District Judge, Gwalior by his order dated 20-10-1971 allowed the appeal and set aside the order of the trial court. The defendants thereupon filed a revision to this Court against the order of the Additional District Judge.

7. An objection was raised on behalf of the defendants before the learned single Judge that the order of the trial court was not appealable and as such the order passed by the Additional District Judge allowing the appeal is without jurisdiction. The learned single Judge noticed two conflicting decisions of this Court on the point. In Puranlal v. Sunderbai. 1975 MP LJ (SN) 126. Sohani, J. took the view that such an order is not appealable. On the other hand, Vyas J.in Ganpat Singh v. Prabhakar Deshpande (Civil Revision No. 437 of 1976 decided on 30-10-1976 (Madh Pra)) held that an application under Section 18 (3) of the Act falls within the purview of Section 47 of the Code of Civil Procedure and is consequently appealable.

8. Yet, another decision has come to our notice i.e. Bala Saheb v. Laxman Rao (Civil Revision No. 425 of 1969) decided on 12-11-1974 (Madh Pra) by one of us (Shiv Dayal J. as he then was). In that case it was held that a decree passed on a ground specified in Clause (g) or Clause (h) of Sub-section (1) of Section 12 is 'partly final and partly preliminary; it is final so far as the right of the landlord to be put in possession by the tenant is concerned; it is preliminary as regards the rights and liabilities of the parties which may subsequently arise on the non-compliance with the provisions of Sub-section (2) of Section 18 i. e. in case the landlord commits default.' It was further held that since 'the decree itself directed that within one month of the completion of the repairs, the landlord would put the tenant back in possession...... the application of the tenant under Section 18 (2) by which he complained of the landlord's default had to be treated as an application for execution'. In the result, the learned Judge observed as follows:--

'Whether on the true construction of Section 18, the order under revision would have been a final decree or as held above, is an order passed by the executing Court, which falls within the purview of Section 47 of the Code of Civil Procedure, the impugned order is appealable as a decree within the meaning of Section 2(2) of the Code of Civil Procedure from which first appeal to the District Judge and second appeal will lie under Section 100 of the Code of Civil Procedure to this Court. That being so, the revision is barred by the opening sentence of Section 115, C.P.C.'

9. We have thus three single Bench decisions of this Court on the point, each at variance with the other, one holding that an order on an application under Section 18 (3) is not appealable, another holding that it is appealable under Section 47 of the Code of Civil Procedure and the third one holding that it is a final decree arid as such is appealable.

10. We have, therefore, to resolve this conflict whether or not an order passed on an application under Section 18 (3) of the Act is appealable

11. Before I embark upon the consideration of the point, it may be properto examine the relevant provisions of the Act bearing on the point.

12. Section 12 deals with restriction on eviction of tenants. Clauses (g) and (h) of Sub-section (1) of Section 12 read as under:--

'12. Restriction on eviction of tenants--(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:--

(a) ...

(b) ...

(c) ...

(d) ...

(e) ...

(f) ...

(g) That the accommodation has become unsafe, or unfit for human habitation and is required bona fide by the landlord for carrying out repairs which cannot be carried out without the accommodation being vacated.

(h) that the accommodation is required bona fide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or alterations cannot be carried out without the accommodation being vacated.

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 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 rebuilding, 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 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 specifiedin the order, the landlord fails to commence the work of repairs or building of 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.'

13. From Sub-section (1) of Section 18, it is clear that in making an order for eviction either under Clause (g) or Clause (h) of Sub-section (1) of Section 12 it is the duty of the Court to ascertain from the tenant whether he elects to be placed in occupation of the accommodation in question. In case the tenant so elects the court shall record the fact of the election in the order and then it has to fix a date on or before which the tenant shall deliver possession so as to enable the landlord to carry out the work of repairs or re-building as the case may be.

14. Sub-section (2) of Section 18 provides that in case the tenant has complied with the order of the court by delivering possession of the accommodation to the landlord on or before the specified date then the landlord shall on the completion of the work of repairs or rebuilding deliver back the possession of the accommodation to the tenant within one month of the completion of such work.

15. Now, if the tenant has complied with the direction of the court but the landlord fails to carry out the duty laid upon him under Sub-section (2), then Sub-section (3) comes into operation and the tenant may make an application under it within the prescribed period and thereupon the court may order the landlord either to place the tenant in occupation of the accommodation or to pay to the tenant such compensation as the court thinks fit The limitation for making such an application is prescribed by Rule 44 of the Rules made by the Government in exercise of the powers conferred by Section 50 of the Act. Rule 44 reads as under:--

'44. Application for re-entry.-- An application by a tenant under Sub-section (2) of Section 17 or under Sub-section (3) of Section 18 for putting him in possession of the accommodation or part thereof shall be madewithin six months from the date on which cause of action for re-entry arises and shall state the grounds on which such possession is claimed.'

16. There is no doubt that such an application has to be made to the same Court which had passed the order of eviction under Section 18 (1). The question then is what is the nature of this application. Is it an independent proceeding for recovery of possession for occupation and re-entry by the tenant or it is only a continuation of the suit or it is an application for execution. It appears to me that an order passed in terms of Section 18 (1) is not an order of eviction but it is a preliminary step which the Court must take in the circumstances mentioned in the sub-section before it finally adjudicates the rights of the parties regarding eviction. The first word 'In' used in the sub-section deserves a special notice. The sub-section says 'In making any order on the grounds specified in Clause (g) or Clause (h) of Sub-section (1) of Section 12.' This clause according to me, means 'before making any order' and not at the time of making any order. According to the definition given in Webster's New International Dictionary Vol. 1, Second Edition the word 'in' also means:--

'Indicating inclusion within a limit of time express or implied..... Hence (a)During the course of; as, spoiled in the making. Through the space or time of; at any time during;'

The Shorter Oxford English Dictionary Vol. I, defines 'in' inter alia as:--

'Of time...... Before or at the expiration of;'

Thus what Section 18 (1) contemplates is that before making an order for eviction on the grounds in Clause (g) or Clause (h) of Sub-section (1) of Section 12, the court shall follow the procedure laid down therein and shall pass an order in terms of Section 18 (1). I am therefore, of opinion that an order passed in terms of Section 18 (1) and (2) is not a final order of eviction against the tenant, It is only a preliminary order in the nature of a preliminary decree. If the conditions laid down in Sub-sections (1) and (2) are carried out by the parties nothing remains to be done by the court. If the tenant fails to comply the direction enjoined upon him by virtue of an order under Section 18 (1) then it is for the landlord to apply to the court for passing a decree for eviction, and if the landlord fails to comply the direction contained in Sub-section (2) then it is for the tenant to apply under Sub-section (3) and the order,passed thereupon will be in the nature of a final decree. It would thus appear that an order under Section 18 (1) does not completely dispose of the suit.

17. The Code of Civil Procedure provides for passing of preliminary decree in certain matters for example, administrative suits, for pre-emption, suits for dissolution of partnership, suits for accounts, mortgage suits, so-forth and so on. It has been held in a number of decisions that the list of cases for passing preliminary decrees provided in the Code is not exhaustive and there is nothing to preclude the court from passing a preliminary decree in cases not expressly provided in the Code. Reference in this connection may be made to a decision of our own Court reported in AIR 1964 Madh Pra 288.

18. Thus I am of the opinion that an order passed by the Court on an application under Section 18 (3) is in the nature of a final decree and is appealable as such.

19. It may be noted that where an application for re-entry under Section 17 of the Act is made by a tenant before the Rent Controlling Authority which may either direct the landlord to put the tenant in possession of the accommodation or pay him such compensation as he thinks fit, the order passed on such an application is appealable under Section 31 I may read here Sections 17 and 31 to bring out the point clearly:--

'Section 17. Recovery of possession for occupation and re-entry.-- (1) Where a landlord recovers possession of any accommodation from the tenant in pursuance of an order made under Clause (e) or Clause (f) of Sub-section (1) of Section 12 the landlord shall not, except with the permission of the Rent Controlling Authority obtained in the prescribed manner, relet the whole or any part of the accommodation within two years from the date of obtaining such possession, and in granting such permission, the Rent Controlling Authority may direct the landlord to put such evicted tenant in possession of the accommodation.

(2) Where a landlord recovers possession of any accommodation as aforesaid and the accommodation is not occupied by the landlord if he is the owner thereof, or by the person for whose benefit the accommodation is held, within two months of obtaining such possession, or the accommodation having been so occupied is, at any time within two years from the date of obtaining possession, re-lets to any person other than the evicted tenant without obtaining the permission of the Rent Controlling Authority under Sub-section (1) or the possession of such accommodation is transferred to another person for reasons which do not appear to the Rent Controlling Authority to be bona fide, the Rent Controlling Authority may, on an application made to it in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the accommodation or to pay him such compensation as the Rent Controlling authority thinks fit.

(3) Where the landlord makes any payment to the tenant by way of compensation under Sub-section (7) of Section 12, the evicted tenant shall not be liable to refund the same to the landlord on being put in possession of the accommodation under Sub-section (1) or Sub-section (2).'

'Section 31. Appeal to District Judge or Additional District Judge.-- (1) An appeal shall lie from every order of the Rent Controlling Authority made under this Act to the District Judge or an Additional District Judge having territorial jurisdiction (hereinafter referred to as the Judge) and the decision of the appellate Court shall be final.

(2) An appeal under Sub-section (1) shall be preferred within thirty days from the date of the order made by the Rent Controlling Authority:

Provided that in computing the period of thirty days the period requisite for obtaining a copy of the order shall be excluded:

Provided further that the Judge may for sufficient reasons allow an appeal after the expiry of the said period.'

20. From the language of Section 17 (2), it is clear that the Rent Controlling Authority has been authorised to pass a similar order as is contemplated by Section 18 (3), in case an order for eviction is made under Clause (e) or Clause (f) of Sub-section (1) of Section 12 and such an order is appealable, It appears to me that the Legislature did not consider it necessary to make a separate provisions for appeal from an order passed by the Court under Section 18 (3) as it is in the nature of a final decree and appealable as such.

21. Hence I would return the following answer to the question:--

An order passed on an application under Section 18 (3) of the M. P. Accommodation Control Act, 1961 is appealable as a decree.

22. The case will now go back to the learned single Judge for disposal according to law.


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