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HIGH COURT OF MADHYA PRADESH
Mr. Justice N.K. Mody
TULSIDAS HEMNANI (DIED)THROUGH L.RS. SHAMLAL
Versus
MADAN LAL
S.A. No.97/2002 Of
Decided On : Jan 13,2010
M.P. Accommodation Control Act - Eviction - Section 12(1)(h) - Section 18(3)
Fact of the Case:
The respondent filed a suit for eviction against the appellant under Section 12(1)(a)(f) and (h) of M.P. Accommodation Control Act. The trial Court dismissed the suit under Section 12(1)(a) and (f) but passed a decree of eviction under Section 12(1)(h). The appellant handed over possession as directed and then filed an application under Section 18(3) of the Act seeking restoration of possession due to the respondent's failure to construct the house.
Finding of the Court:
The Court found that the appellant was entitled to restoration of possession under Section 18(3) as the tenancy subsisted and the accommodation could not be constructed for no fault of the appellant. The Appellate Court's decision to reverse the trial Court's order was unjustified, and the appeal was allowed, setting aside the Appellate Court's judgment and restoring the trial Court's order.
Issues: The main issues were whether the lower appellate Court was justified in reversing the trial Court's judgment and whether the appellant had made out a case for grant of mandatory order under Section 18(3) of the Act.
Ratio Decidendi: The Court held that the tenancy subsisted and the appellant had a right of reentry under Section 18(3) of the Act. It was also noted that the respondent's failure to construct the house did not justify punishing the appellant or rewarding the respondent for their own fault.
Final Decision: The appeal was allowed, the Appellate Court's judgment was set aside, and the trial Court's order was restored.
N.K.Mody, J.
( 1. ) Being aggneved by the judgment dated 04/12/01 passed by Additional District Judge, Indore in Civil Regular Appeal No.30/01 whereby the order dated 28/02/01 passed by learned X Civil Judge, Class-II, Indore in MJC No.5/99 was set aside, the present appeal has been filed, which has been admitted by this Court on the following substantial question of law vide order dated 15/07/02-
1. Whether lower appellate Court was justified in reversing the judgment passed by the trial Court which had allowed the application made by appellant (tenant) under Section 18(3) of M.P. Accommodation Control Act?
2. Whether in the facts and circumstances of the case, appellant (tenant) has made out a case for grant of mandatory order as contemplated under Section 18(3) of the Act to be passed against the landlord?
( 2. ) Short facts of the case are that the respondent filed a suit for eviction against the appellant under Section 12(1)(a)(f) and (h) of M.P. Accommodation Control Act (which shall be referred hereinafter as an "Act") on 05/08/91 alleging that the appellant is tenant in the suit accommodation @ Rs 200/- per month. The suit was contested by the appellants on all the grounds. After framing of issues and recording of evidence, suit filed by the respondent was dismissed under Section 12(1)(a) and (f) of the Act. However, decree of eviction was passed against the appellants under Section 12(1)(h) of the Act. Against the judgment and decree passed by the learned trial Court appeal was filed by the appellant which was dismissed vide judgment dated 14/05/97 and the judgment and decree passed by the learned trial Court was maintained. In the appeal cross-objections were also filed by the respondent, wherein it was prayed that the learned trial Court committed error in not passing the decree under Section 12(l)(a) and (f) of the Act. While dismissing the appeal cross-objections were also dismissed. Against the decree passed by the learned Appellate Court second appeal was filed by the appellants before this Court, which was numbered as SA. No.248/97 and was dismissed on 02/09/98 with a further direction to the appellants to handover the possession to the landlord / respondent within a period of three months from the date of judgment.
( 3. ) Instead of handing over the possession appellants moved an application before this Court for clerification that no time has been fixed for completion of construction, therefore, respondent be directed to complete the construction within the stipulated time. This application was filed on 10/11/98 and was numbered as MCC No.608/98. Since the application could not be disposed of before the date when the possession was to be handed over as per the order of this Court, therefore, appellants handed over the possession of suit accommodation on 30/11/98. Thereafter the application filed by the appellants which was numbered as MCC No.608/98 and was dismissed on 05/03/99 with an observation that after handing over the possession appellants shall be at liberty to move an appropriate application before the learned trial Court under Section 18(3) of the Act. Thereafter in the month of March, 1998 appellants moved an application before the learned trial Court under Section 18(3) of the Act wherein it was prayed that since no construction has been raised by the respondent, therefore, appellants be given possession of the suit accommodation.
( 4. ) The application was opposed by the respondent. After holding a summary enquiry the application was allowed and vide order dated 28/02/01 it was directed that possession of the appellants be restored. Against the order passed by the learned trial Court first appeal was filed by the respondent which was allowed vide order dated 04/12/01. During pendency of the appeal, in compliance of execution of the order passed by the learned trial Court, possession of the suit accommodation was taken by the appellants through Court on 03/08/01. Thereafter, appeal filed by t
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