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Krishanlal Ishwarlal Desai Vs. Bai Vijkor and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1967SC375; (1964)GLR171(SC); [1964]1SCR553
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1) and 17(1)
AppellantKrishanlal Ishwarlal Desai
RespondentBai Vijkor and ors.
Excerpt:
.....possession of premises. - section 152: [s.b. sinha & dr. mukundakam sharma, jj] amendment of decree - decree in suit for possession -genuine and bona fide mistake regarding khasra number of suit property in decree held, where in the suit for possession, mistake had occurred in the decree regarding khasra number of the suit property due to wrong recording of khasra number in khasra giradwari and the decree holder was not responsible for the said clerical mistake, there is no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising powers under section 152. instead of directing decree-holder to seek remedy under section 152, in such a case, in order to cut short the litigation and to save precious time of the court as also to give..........of s. 17(1) mustapply within 13 months of the date on which possession was delivered to thelandlord-decree-holder. the scheme of s. 17(1) thus clearly proves that all therelevant clauses have prescribed respective periods of limitation, and so, itwould be idle to suggest that the liability imposed on the landlord to occupythe premises possession of which had been decreed in his favour under s.13(1)(g) is without any relevant limitation. 13. there is another consideration which supports this conclusion. section17(2) provides for a penalty against a landlord who contravenes the provisionsof s. 17(1). this provision lays down, inter alia, that any landlord whorecovers possession on the grounds specified under clause (g) or (i) of s.13(1) and keeps the premises unoccupied or does not.....
Judgment:

Gajendragadkar, J.

1. This appeal by special leave raises a short question about theconstruction of section 17 of the Bombay Rents, Hotel and Lodging House RatesControl Act, 1947 (No. 57 of 1947) (hereinafter called the Act). The saidquestion arises in this way. The appellant Krishanlal Ishwarlal Desai is thelandlord who owns an open plot of land named Hathi Khada in Kalaswadi town inthe district of Surat. The said plot measures 32,406 sq. ft. This plot was inthe possession of the respondents Bai Vijkor & others as tenants. In 1951,the appellant sued the respondents in ejectment. He claimed that under s. 13(1)(g) and (i) of the Act he was entitled to recover possession of thepremises consisting of the open plot in question. This claim was resisted bythe respondents. The trial Court held that the appellant had not establishedhis case under s. 13(1)(i) but had proved his claim under s. 13(1)(g). Havingrecorded this finding, the trial Court proceeded to examine the extent of therequirement proved by the appellant. Section 13(1)(g) provides inter alia, thatnotwithstanding anything contained in the Act, a landlord shall be entitled torecover possession of any premises if the Court is satisfied that the premisesare reasonably and bonafide required by the landlord for occupation by himself.Section 13(1)(i) provides that the landlord would be similarly entitled torecover possession if the premises being land, they are reasonably and bonafiderequired by the landlord for the erection of a new building. The trial Courtfound that the requirement of the appellant would be adequately met if he isgiven a decree for the possession of 2/3rds of the plot in suit. Accordingly, adecree was passed in his favour to that extent on March 16, 1955.

2. This decree was challenged both by the appellant and the respondents bycross-appeals in the District Court. The District Court held that the viewtaken by the trial Court was substantially right and there was no reason tointerfere with the decree passed by it. In the result, both the appeals weredismissed on April 28, 1956.

3. The appellant then filed an execution application and obtained possessionof 2/3rds of the premises in question on June 29, 1957. It appears that at thetrial, the appellant's case was that he wanted the said premises for thepurpose of his timber business. Eventually, however, the appellant occupied thesaid premises on October 24, 1957, not for carrying on his timber business butfor storing or stocking materials of sanitary works and building contractswhich business he had started in partnership on that day. The appellant hadconstructed a shed for the watchmen to look after the articles which werestored on the open plot.

4. On July 29, 1958, the respondents applied under s. 17(1) of the Act tothe trial Court to obtain possession of the said premises on the ground thatthe appellant had failed to occupy the said premises within a period of onemonth from the date when he recovered possession as required by s. 17(1). Thetrial Court held that the respondents have failed to make out a case under s. 17(1) and so, their application was dismissed.

5. The respondents then preferred a revisional application in the DistrictCourt. This revisional application was treated as an appeal because the orderpassed by the trial Court was applicable. The District Court held that theappellant had failed to occupy the premises within the period prescribed by s. 17(1) and so, the respondents were entitled to an order against the appellantfor the possession of the said premises. This order was challenged by theappellant by preferring a revisional application before the High Court ofGujarat. The revisional application was, however, summarily dismissed. It isthis revisional decision of the High Court of Gujarat that has given rise tothe present appeal, and the only question which is raised for our decision isabout the construction of s. 17(1) of the Act.

6. We have already seen that s. 13 provides for cases where the landlord isentitled to recover possession of the premises from the tenant and that theappellant in fact obtained a decree for possession under s. 13(1)(g) on theground that 2/3rds of the premises were reasonably and bonafide required by himfor occupation by himself. The respondents' case is that under s. 17(1) it wasobligatory on the appellant to occupy the premises within one month after June29, 1957 when possession was delivered to him in execution proceedings; sincehe had failed to comply with this requirement, they became entitled to obtainback possession of the said premises; and as the present application had beenmade by them within 13 months from June 29, 1957, as required by s. 17(1), anorder for possession ought to be passed in their favour. The appellant, on theother hand, contends that the stipulation as to the period of one month onwhich the respondents relied does not apply to the case of occupation whichwould arise in the case of a decree passed under s. 13(1)(g). The said periodapplies to the case of a decree passed under s. 13(1)(i). That is how thecontroversy between the parties raises the question of construction of s.17(1).

7. Let us now read s. 17(1). Section 17(1) reads as under :-

'where a decree for eviction has been passed by theCourt on the ground specified in clause (g) or (i) of sub-section (1) of s. 13and the premises are not occupied or the work of erection is not commencedwithin a period of one month from the date the landlord recovers possession orthe premises are re-let within one year of the said date to any person otherthan the original tenant, the Court may on the application of the originaltenant, made within thirteen months of such date order the landlord to place inoccupation of the premises on the original terms and conditions, and, on suchorder being made, the landlord and any person who may be in occupation of thepremises shall give vacant possession to the original tenant.'

8. It is clear that when s. 17(1) refers to the requirement that thepremises must be occupied by the landlord, the occupation intended by theprovision is different from possession, because the first clause of 17(1) makesa clear distinction between occupation and delivery of possession. The effectof this clause is that when a landlord who has obtained a decree for possessionexecutes the decree and obtains possession of the premises in question he mustoccupy them in terms of the case made out by him under s. 13(1)(g) and heldproved at the trial. Whether or not the occupation by the landlord should befor the same purpose which he set out at the trial or can be for a different purpose,is a question which it is unnecessary to decide in the present appeal. What is,however, clear beyond any doubt is that when the possession is obtained inexecution it must be followed by an act of occupation which must inevitablyconsist of some overt act in that behalf and this overt act was, on the findingof the District Court, done by the appellant on October 24, 1957. That meansthat the appellant occupied the premises beyond the period of one monthprescribed by s. 17(1).

9. Does the stipulation about the period of one month apply to the case of adecree passed under s. 13(1)(g) That is the next question to consider. Itwould be noticed that the first clause of s. 17(1) deals with decrees passedunder s. 13(1)(g) and (i) and reading the clause, there appears to be nodifficulty in holding that the requirement as to one month applies to bothcategories of decrees. On a fair and reasonable construction of that clause,there appears to be no escape from the conclusion that the period of one monthapplies as much to the case of occupation as to the case of erection of thework contemplated by Sections 13(1)(g) and (i) respectively.

10. Besides, the scheme of s. 17(1) clearly supports this construction.Section 13(1) has allowed the landlord to eject the tenants from the premisesin their possession for specified reasons and s. 17(1) affords a protection tothe tenants where a decree for ejectment has been passed against them underclause (g) or (i) of s. 13(1). If the legislature thought it necessary torequire the landlord to commence the work of erection if he has obtained adecree for possession under s. 13(1) within one month, there is no reason whythe legislature should not have provided for the same or similar period inrespect of occupation which is referable to the decree passed under s.13(1)(g). Mr. Setalvad contends that the occupation could be effected withina reasonable time for he suggests that no limitation having been prescribed inthat behalf, the general rule would be that it should be done within areasonable time. We think this construction cannot be accepted because it isextremely unlikely that the legislature should have provided the period of onemonth for one category of decrees and should have made no specific provision inthat behalf in respect of decrees of the other category. Besides, theconstruction of the clause according to the rules of ordinary grammar isdecisively against the appellant's contention.

11. The second clause of s. 17(1) refers to a case where the landlordre-lets the premises within one year of the date on which he obtains possessionin execution proceedings to any person other than the original tenant. In otherwords, this clause covers cases where the landlord obtains a decree forpossession and instead of using the premises for purposes pleaded by him and onproof of which a decree was passed in his favour he proceeds to re-let them toa stranger; and it provides that if this re-letting takes place within one yearof the date specified by it, the original tenant is entitled to claimpossession of the said premises. This clause also shows that s. 17(1) isintended to afford protection to the rights of tenants who have been ejectedunder s. 13(1)(g) and (i).

12. Similarly, a period of limitation is prescribed for the exercise of therights conferred on the tenants by the last clause of s. 17(1). This clauseprovides that the tenants who want to claim the protection of s. 17(1) mustapply within 13 months of the date on which possession was delivered to thelandlord-decree-holder. The scheme of s. 17(1) thus clearly proves that all therelevant clauses have prescribed respective periods of limitation, and so, itwould be idle to suggest that the liability imposed on the landlord to occupythe premises possession of which had been decreed in his favour under s.13(1)(g) is without any relevant limitation.

13. There is another consideration which supports this conclusion. Section17(2) provides for a penalty against a landlord who contravenes the provisionsof s. 17(1). This provision lays down, inter alia, that any landlord whorecovers possession on the grounds specified under clause (g) or (i) of s.13(1) and keeps the premises unoccupied or does not commence the work oferection without reasonable excuse within the period of one month from the dateon which he recovers possession, shall on conviction be punishable in themanner specified in the said provision. Similar penalty is imposed on alandlord or other person in occupation of the premises who fails to comply withthe order of the Court under s. 17(1). It is obvious that when the first clauseof s. 17(2) refers to the failure of the landlord either to occupy or tocommence erection of the work without reasonable excuse within the period ofone month, absence of reasonable excuse and the period of one month apply asmuch to cases falling under clause (g) as to cases falling under clause (i) ofs. 13(1). The plea open to the landlord that he failed to occupy the premisesor he failed to commence the work of construction within the specified periodbecause of a reasonable excuse is available to him in both categories of casesand so, absence of reasonable excuse applies equally to both the saidcategories. If that is so, the period of one month which is the crucial pointmust govern both the categories of cases. Therefore, in our opinion, the HighCourt was right in agreeing with the decision of the District Court that theappellant in the present case had failed to comply with the first part of s.17(1) and so, the respondents were entitled to - an order for possession of thepremises in question. The appeal accordingly fails and is dismissed with costs.

14. Appeal dismissed.


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