N.H. Bhatt, J.
1. This is the revision application under Section 29(2) of the Bombay Rent Act by the owners of business premises at Rajkot, who have thrown all moral and ethical standards to wind for the purpose of their selfish ends and had it not been for jurisdictional difficulty raised by them, I would have happily rejected their revision application.
2. A few facts requires to be stated. These applicants-landlords had filed in the competent rent court of Rajkot a Regular Civil Suit No. 298/71 against the deceased tenant, Bbaichand Vircbandbhai, whose three sons opponents Nos. 1, 2 and 3 are his heirs and legal representatives. The said suit filed by the applicants-landlords in the court of the Civil Judge, Senior Division, Rajkot, was for possession of the rended property, godown 22' x 8'.2', on the ground that the premises were reasonably and bona fide required by them for carrying out the repairs which could not be carried out without the premises being vacated. The suit was filed on 31st March, 1971. On 27th April, 1971, the parties entered into compromise which is Ex. 39. Ex. 38 on the record of the present proceedings is the plaint in that suit. As per the compromise Ex. 39 the landlords agreed that the deceased Bhaichand Virchandbhai was continued to be a tenant of the premises; that he continued to be in possession of the premises; that the landlords were permitted entry on the rented property for the purpose of effecting demolition and reconstruction of the premises to be completed by them within the six months i.e. by 31st October, 1971; that if the landlords failed to reconstruct the property within that stipulated time, the tenant-Bhaichand Virchand was at liberty to get the work completed at the cost of the landlords and that the rent for the premises was to be paid by the tenant at the rate of Rs. 50/- per month on and from 1-11-1971. The learned Judge, before whom the compormise Ex. 39 was presented, passed the following order:
Plaintiffs, defendant and advocate of plaintiffs are present. They admitted the contents of compromise. Decree to be drawn in terms of compromise.
The formal decree as per Ex. 40 came to be also drawn by the learned Judge. Thereafter the landlords demolished the property and started reconstruction. Tnsn on 11-12-1971 the deceased tenant Bhaichand Virchand sent a telegraphic notice to the landlords in the following terms:
Remove your materials from my client's rented godown situated near Alfred High School within 24 hours otherwise my client lodging criminal complaints against you and you liable for all consequences.
The landlords gave reply Ex. 42 on 14-12-71. The landlords informed the tenant that the work of renovation was going on and the landlords were keen to finish the constructional work as early as possible and that there was no case for any threat of prosecution. The building then came to be fully constructed but the landlords were in no mood to allow the tenant entry on the premises. So deceased Bhaichand Virchandbhai, the tenant, filed an application before the court which came to be registered as Misc. Application No. 252/72. The application purported to be one under Section 16(3) of the Bombay Rent Act, and the prayer was that the landlords be directed to hand over the possession to the tenant pursuant to the decree passed in the abovementioned suit No. 298/71. The landlords could successfully thwart the tenant's attempts to have the expeditious justice and the applicant-tenant, Bhaichand Virchand, died in the year 1975, and his heirs the present opponent, Nos. 1, 2 and 3 prosecuted the said application. In the year 1973 the landlords whose malignant design is a matter of non-challenge inducted M/s. Talsania & Brothers as their new tenant in the godown in question and so the said tenant was impleaded as a party and this firm is the opponent No. 4 in this application. After the keen contest the trial court by its judgment dt. 18th July, 1977 passed the order of eviction of the opponent No. 4 and a direction to the landlords to place the applicants in occupation of the premises. The landlords moved the District Court by filing Revision Application No. 20/77 which came to be rejected by the learned District Judge by his order dt. 30th January, 1978. Being aggrieved by the said order, the original landlords moved this Court by filing the present Revision Application, essentially on the ground that the court had no jurisdiction to entertain such an application under Section 16(3) of the Bombay Rent Act.
3. Section 16(3), which is material for our purpose, is quoted below:
If, after the tenant has delivered possession on or before the date specified in the decree, the landlord fails to commence the work of repairs within one month of the specified date or fails to complete the work within a reasonable time or having completed the work fails to place the tenant in occupation of the premises in accordance with Sub-section (2), the court may, on the application of the tenant made within one year of the specified date, order the landlord to place him in occupation of the premises or part thereof on the original terms and conditions: and on such order being made the landlord and any person who may be in occupation shall give vacant possession to the tenant of the premises or part thereof.
Both the courts below held that the decree that was passed was the one under Section 13(1)(h) of the Bombay Rent Act and, therefore, the provisions of Section 16 of the Act were squarely attracted. The moot question that arises before me is whether the decree in question can be said to be one under Section 13(1)(h) of the Rent Act or alternatively under Section 13(1)(hh) of the Act as Mr. S.M. Shah for the opponents Nos. 1, 2 and 3 tried to alternatively urge before me in the course of his submissions. If it is held that the decree was under Section 13(1)(h), Section 16 would be squarely attracted. If the decree can be interpreted to be one under Section 13(1)(hh), Section 17 would be there to stand by the tenant. However, to me it appears that it is inevitable to hold that the decree in question would fall under neither of the provisions. It is a decree by itself without falling under any provisions like Section 13(1)(h) of 13(1)(hh). It was a decree, to read between the lines, granting liberty to the landlords to enter the premises as the licensees to effect demolition and to bring about reconstruction, the tenant all the while retaining the possession of the property. This is the highest level to which the decree can be put andjif it be so, it cannot be said to be a decree of eviction under Section 13(1)(h) or Section 13(1)(hh). Mr. Section M. Shah for the tenants had strained very hard to bring the decree Ex. 40 under either of the provisions, but despite my tremendous sympathy for the opponents, I feel almost helpless in the matter. The first reason against the plea is that there is no decree of eviction but it is a decree granting license to the tenant. Secondly, the decree cannot fall under Section 13(1)(h) because the compromise very clearly shows that there was no question of repairs but it was a question of total demolition and reconstruction. The third reason is that requirements of Sections 16(1) and 16(2) are not at all there mentioned in the consent terms. Had the decree been under Section 13(1)(h) the court was required to ascertain from the tenant whether he had elected to be placed in the premises or part thereof and if the tenant so elected it was to be recorded in the decree and the date on or before which the tenant was to hand over possession was to be specified in the decree. Nothing of the sort is there in the decree, though, no doubt, it mentions that it was open to the landlords to commence work the following day. Fourthly, Sub-section (2) of Section 16 requires that the landlord has to give notice two months before the date on which the repair work was likely to be completed and the tenant is required to intimate to the landlord his acceptance of the accommodation offered and deposit with the landlord rent for one month. The absence of any such provision in the compromise apart from the absence of any decree of eviction makes it abundantly clear that the parties did not intend to have the decree of eviction under Section 13(1)(h).
4. The plea regarding Section 13(1)(hh) is more untenable than the former one. Firstly, the suit itself was not under Section 13(1)(hh) of the Act. A suit under Section 13(1)(hh) is required to be accompanied by a certificate contemplated by Section 13(3A) of the Act. Moreover the said Clause (hh) will be applicable only to the premises consisting of not more than two floors. For want of any requisite particulars either in the plaint or in the consent terms, it is difficult to agree that the decree should be termed as one under Section 13(1)(hh).
5. Mr. Shah, however, fervently appealed to me on the ground that the landlords were out to make capital out of the simplicity of the tenant and every endeavour should be made to stop and arrest this abuse of the court's powers in the sense that the court put its seal of approval on the consent terms by passing the decree in the terms provided for. The Supreme Court had an occasion to deal with a similar case, or if I say so, a case having facts far more favourable to the tenant than the ones in the present case. It is the case of Ram Nath and Anr. v. Mis. Ram Nath Chhittar Mai and Ors. A.I.R. 1961 S.C. 106. The case was under Section 15(3) of the Delhi and Ajmer Rent Control Act, the provisions of which are in part materia with Section 16(3) of the Bombay Rent Act. The Punjab High Court had upheld the tenant's contention and passed the order of eviction particularly invoking Section 151, C.R Code. The Supreme Court allowed the landlord's appeal and dismissed the application. The decree in that case that was passed on consent, ran as follows:.Also decree for ejectment be passed in respect of the shop in suit in favour of the plaintiff against the defendants and that the defendants. Do give possession of the shop in suit by 4-3-53 to the plaintiff and that the plaintiff after constructing, it afresh within six months from 4-3-53 give it to the defendants....
The Supreme Court then proceeded to observe as under:
According to the decree the possession was to be given to the appellants on March 4, 1953, but it was actually delivered by the three respondents between March 7, and 15, the three respondents filed three separate applications under Section 15 of the Act for their being put into possession.... The High Court held that the compromise did not compromise any matter which was not the subject matter of the suit; that the respondents could enforce the terms of the decree in the proceedings which they took i.e. under Section 15 of the Act; that time was not of the essence of the compromise and therefore of the decree and consequently inspite of the possession of the premises having been given by the respondents after the date specified in the decree, i.e. March 4, 1953, the respondents were entitled to enforce the decree by execution and apply for possession being restored to them; at any rate they could apply for restitution under the inherent powers of the court.
The Supreme Court in para 5 of the report has observed as follows:
The decrees which were passed were substantially in accordance with the provisions of Section 15 of the Act and as was contended by the appellants they were decrees under which the premises had to be vacated by the respondents on a specified day. Under that Section they had the right to elect and did elect to get possession after rebuilding; this possession was to be given by the landlords to the tenants within a reasonable time and six months' period was fixed by consent between the parties and the rent, if the respondents were not put into possession on the same terms as before, was to be settled by court and that is what was done Under the terms of the consent decree. The applications for being put into possession which were filed by the respondents were really under Section 15(3) of the Act. As the respondents did not deliver possession to the appellants on or before the dates specified in the decree the provisions of Section 15 contained in Sub-section (3) of that Act were not available to them and they were not entitled to be put into possession at prayed by them.
(emphasis supplied by me).
In above view of the matter, I have stated that the facts of the case before the Supreme Court were far more favourable to the tenants than the facts in this case are to the opponents Nos. 1, 2 and 3, (he heirs of the original tenant.
6. In that view of the matter, it is difficult to hold that Section 16(3) of the Act would be attracted to the facts of the present case.
7. Mr. Shah for the opponents, however, urged that this Court's powers are invoked either under Section 29(2) of the Rent Act or Section 151 of C.P. Code, and it being absolutely discretionary with this Court to grant or not to grant a relief, the court should decline to interfere despite the technical requirements being complied with. Had it not been the question of jurisdiction, I would have readily accepted the submission of Mr. Shah. It was then urged by him that eviction was ordered against the present opponent No. 4, the alleged new tenant, who had chosen not to prefer the revision application even in the District Court and he being the only aggrieved party having not chosen any redress, there was all the more reason for this Court to decline to interfere. The impugned order is essentially also against the landords; because the opponent No. 4 claims through the landlords. It cannot, therefore, be urged that opponents Nos. 1, 2 and 3 are not in any way prejudicially affected by the impugned order.
8. Mr. Shah's last submission was that Section 151 of C.P. Code should, at any rate, be invoked and the court should hold that it is trying to bring about restitution. Had the matter been so simple, I would have readily agreed to do so. However, the act of dispossession, if the technicality is to be continued, has taken place sometime after the consent decree came to be passed under the terms of which the possession was to be with the tenant and only license to be on the property for the purpose of demolition and construction was granted in favour of the landlords. The tenant by filing the application under Section 16(3) of the Rent Act proceeds on the basic fact that he has been evicted. If what the decree provided for stood, there was no question of eviction and the tenant could have retained his possession and if he thought that he was being disturbed the proper remedy of his was to sue for an injunction. He, however, took the situation as the one resulting into his eviction. I do not mean to say that the tenant was helpless. His remedy lay in filing a suit for possession on the basis of his right to possession. But it is unfortunate that he was advised to have recourse to Section 16(3) of the Rent Act. Even in the abovementioned Supreme Court case, Section 151, C.P. Code was held to be not invokable, though the Punjab High Court had specifically relied on it.
9. In above view of the matter, I allow his revision application by setting aside the orders of the courts below. Rule is accordingly made absolute with no order as to costs throughout.
At the request of Mr. S.M. Shah, the operation of the judgment pronounced by me above is suspended for the period of one month in order that the heirs of the original tenant may have further recourse, if any, in accordance with law.