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1974 Supreme(MP) 95
High Court Of Madhya Pradesh
A. P. Sen, J.
GHANSHTAM HAZARIMAL
Versus
NATHMAL LAXMINARAYAN
Decided On : Sep 06,1974
K.L.ISSRANI, R.D.Hundikar,
Headnote:(1) Accommodation Control Act, 1961 (MP) - S. 18 (3) - right of re-entry - nature of -tenant should fulfill his obligation.
It is plain from the provision of sub-section (2) and (3) of section 18 of the Act that right of re-entry is given to the tenant as a concession on the fulfillment of the condition precedent, namely, that the tenant must deliver possession of the accommodation to the landlord on or before the dates specified in the decree. If the tenant fails to do so, he forfeits the right of re-entry. The provisions of section 18 (3) has to be construed strictly and the tenant pleading that privilege, must fulfill it exactly. 1970 JLJ SN 123 & 1973 JLJ SN 77 relied on. [Para 9
(2) Accommodation Control Act, 1961 (MP) - S. 18 (1) - word 'Court' - includes appellate Court - first appellate Court fixing time within which the tenant should hand over possession - possession not given, instead a second appeal filed - second appellate Court not bound to fix another date for vacating the premises.
The trial Court while decreeing a suit for eviction under section 12 (1) (h) of the Act failed to ascertain the election of the tenant and fix a date for re-entry. But the first appellate Court while confirming the decree for eviction fixed a date by which the tenant should hand over the possession of the premises to the landlord. The tenant, instead of handing over the possession filed a second appeal. While dismissing the second appeal, the High Court did not fix any other date for handing over possession.
Held: No doubt the word 'Court' appearing in section 18 (1) means not only the Court trying the suit but also the appellate Court. It may well be that the landlord's suit under section 12 (1) (h) may fail in the Court of first instance, but succeed in appeal. All that the section provides is that the 'Court' while making an order for eviction under section 12 (1) (g) & (h) shall ascertain whether the tenant elects to be placed in possession. When the suit is decreed by the trial Court, that Court has the duty to ascertain the fact and if the tenant so elects, to specify a date by which he should deliver possession. But, if the suit is decreed on appeal the appellate Court has to perform that duty. [Para 11
The Act, however, nowhere provides that when the tenant does not abide by his election and files, instead, an appeal against the decree, the appellate Court should specify another date. The tenant has to make a choice. If the tenant does not stand by his election, he forfeits the right of re-entry. 1972 JLJ 464 held not correctly decided. [Para 12
( 1. ) THIS order will also dispose of Miscellaneous Civil Case No. 223 of 1974 Ghanshyam and another v. Nathmal.
( 2. ) THIS further appeal in execution, filed by the judgment-debtors, defendants, is directed against an order of the Additional Judge to the District Judge, bhopal, affirming that of the 4th Civil Judge, Class II, Bhopal, rejecting their application under section 47 of the Code of Civil Procedure to the executability of the decree. The connected application under section 152 of the Code of civil Procedure has been filed by them for amending the decree in Second appeal No. 119 of 1972 (Hazarimal and another v. Nathmal), decided on 4-9-1972.
( 3. ) THE facts, in brief, are these: The plaintiffs suit for ejectment under section 12 (1) (h) of the Madhya Pradesh Accommodation Control Act, 1961 was decreed by the 3rd Civil Judge, Class II, Bhopal, but the learned trial Judge, while decreeing the suit, failed to ascertain under section 18 (1) of the Act from the defendants whether they wanted to exercise their option of re-entry upon re-construction of the demised premises. That was, however, set right in appeal by the 3rd Additional District Judge, Bhopal, who directed the defendants to deliver possession of the accommodation to the plaintiff on or before 15-2-1972. The defendants, however, instead of delivering possession of the premises to the plaintiff, preferred a second appeal to this Court. In second appeal Singh J. affirmed the decree for ejectment under section 12 (1) (h), but did not in my opinion rightly, appoint another date under section 18
(1) of the Act.
( 4. ) WHEN the plaintiff put the decree in execution, the defendants raised an objection under section 47 of the Code, stating that they had, by their notice to the plaintiff, stated that they were ready to hand over possession of the premises, as required by section 18 (1) of the Act and, therefore, the Executing court should give them time to vacate. That objection of their was rejected by the Executing Court as also by the learned Additional District Judge.
( 5. ) THE decision of the case turns upon the construction of section 18 of the Madhya Pradesh Accommodation Control Act, 1961, which reads-
"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 subsection (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 re-building, 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 re-building 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 specified in the order, the landlord fails to commence the work of repairs or building or 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 think fit. "
( 6. ) IN support of the appeal, reliance is placed on the following observation of Raina J. in Chandrashekhar v. Niyamatram (1972 MPLJ 770-1972 JLJ 464 ). "section 18 confers a very valuable right on the tenant and
