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High Court Of Madhya Pradesh
K. L. SHRIVASTAVA
SHYAMSUNDER - Appellant
Versus
BHANWARLAL - Respondents
C. R. 377 Of 1982
Decided On : 01/06/1986
It may be noted that under S. (12) (11) of the Act, the requirement is that the tenant vacates the portion not let to him. No doubt that the decretal direction by the lower appellate Court is for delivery of possession. It was, however, to be read in the context of the provision under S. 12 (11) of the Act as it was passed with a view to comply therewith. [Para 19
In the instant case, the tenant not accepting the position that he had encroached upon any portion, had stated that the accommodation was lying vacant as before and that the landlords were free to use it. The fact that the portion had been vacated is clearly implicit in the aforesaid stand taken by the tenant. [Para 20
In the instant case there is no evidence on which the controversy between the parties as to whether the encroached portion was vacant on 26-6-81 could be determined. The learned lower Court has given its finding on a question of fact without any relevant evidence. 1983 JLJ 302 relied on. [Para 21
(2) Possession-delivery of-is a bilateral act-requires one side to give up and the other to take. [Para 18
(3) Civil P.C., 1908-S. 115 (1)(c)-revisional powers under-may be exercised when a rule of law has been violated- use of the word 'acted' - meaning of.
Section 115 (1) (c) of the CPC authorises the High Court to pass such orders in revision as it thinks fit where the subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity. The use of the Word 'acted' indicates the true position and refers to the class of cases where the Court having jurisdiction violates a rule of law or of procedure prescribing the mode in which such jurisdiction is to be exercised. The arriving at a conclusion or decision is only a mental operation and the Court cannot be said to be 'acting' in so coming to a conclusion or a decision on a question of law or fact. AIR 1971 SB 2324 followed. [Para 22
(4) Words and Phrases-words 'illegality', 'acting illegally' and 'acting with material irregularity' - meaning of. [Para 23
(5) Civil P.C, 1908-S.115-revision under-words 'illegality', acting illegally and acting with material irregularity-meaning of.
An act is illegal or merely irregular seems to depend upon the importance of the provision of jaw disregarded. Thus where the law expressly prohibits a thing to be done, a disregard of such a provision has been held to amount to an illegality.
Words 'acting illegally' to mean acting in breach of some provision of law and the words 'acting with material irregularity' to mean committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. AIR 1949 PC 156, AIR 1968 SC 1355 and AIR 1953 SC 23 followed. [Para 23
( 1 ) THIS order shall also govern the disposal of Civil Revision No. 378 of 1982 between the same parties. They arise out of the orders dt. 9-3-82 passed by the Civil Judge Class II Dhar in Miscellaneous Judicial Case No. 24 of 1981 and in the Execution Case No. 436-A of 1978.
( 2 ) THE circumstances giving rise to these revisions are these : - non-applicant is the tenant of the applicant in the accommodation in question (upper storey of House No. 79 Shivaji Marg Dhan Mandi Dhar ). A suit for eviction (Civil Suit No. 436-A of 1978) was instituted against him in the Court of Civil Judge Class II Dhar under Section 12 of the Madhya Pradesh Accommodation Control Act 1961 (for short 'the Act') on the grounds of non-payment of arrears despite notice and the same also amounting to nuisance and also on the ground of encroachment of a portion of the accommodation not let to him. Thus the grounds were those mentioned in Ss. 12 (1) (a), 12 (1) (c) and 12 (1) (e) of the Act.
( 3 ) THE non-applicant resisted the suit contending inter alia that he had made no encroachment as alleged.
( 4 ) AT the conclusion of the trial, the learned trial Judge decreed the suit on the grounds under S. 12 (1) (c) and 12 (1) (e) of the Act.
( 5 ) IN appeal, the learned first appellate court set aside judgment and decree passed by the trial Court and dismissed the suit, however, giving directions under S. 12 (11) of the Act which the learned trial court had omitted to give. The directions given by the first appellate Court are that the non-applicant shall deliver vacant possession of the encroachment portion (as shown by red colour in Ex P/2) to the landlords by 26-6-81. There is the further direction that the non-applicant shall deposit in the lower Court compensation from 27-12-77 at the rate of Rs. 15/- p. m. and shall also inform the landlords. There is also the direction to inform the Court by the aforesaid date that the encroached portion has been vacated. It has further been ordered that the non-compliance with these directions will entitle the landlords to obtain possession on the accommodation in dispute after the aforesaid date. As pointed out in para 15 of the judgment in Kewal Chand's case 1983 MPRCJ 35 a decree u/s 12 (1) (c) of the Act has to be a conditional one.
( 6 ) ON 26-6-81, the non-applicant applied to the learned trial court stating therein that he was depositing mesne profits at the rate of Rs. 15/-p. m. as ordered by the lower appellate Court and that the portion allegedly encroached upon was never in his possession and is lying vacant and that the landlords are free to use the same. This application was ordered by the trial Court to be registered as M. J. C. No. 24 of 1981. In his reply dt. 4-9-1981 to the aforesaid application by the tenant, the landlords denied that the encroached portion had all along been lying vacant. It was contended that unless possession was delivered to them the portion could not be used. They prayed for warrant of possession of the entire accommodation including the portion encroached upon on the ground that they were entitled to that relief, the tenant having failed to comply with the decretal directions given by the learned appellate Court.
( 7 ) IN view of the application and the reply controversy as to whether the encroached portion had been vacated as directed by the lower appellate Court did arise for consideration.
( 8 ) THE learned trial Court without inquiring into the question just heard arguments in M. J. C. and held that the tenant had vacated the encroached portion and there is compliance with the decretal directions given by the learned appellate Court. In this view by its order dt. 9-3-82 it also rejected the landlord's prayer for warrant of possession of the premises. This is the order impugned in the revision in question.
( 9 ) NOW as to the other revision petition. On 29-6-81 the landlords had filed an application for execution praying that as the directions given by
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