K.S Hanumantbarayappa v. A.N Vittal Rao .

(1) Both the revision to petitions can be disposed of by a common order since the respondent in. Both the matters is common.

(2) The petitioners are tenants. The respondent is the landlord. The respondent filed applications under section 12 (1) of the a. P. Buildings (lease, rent and eviction) control act. (no. Xv of 1960) (for short the act) in h. R. Cs. 5 and 6 of 1968 for bonafide permission for demolition and for reconstruction of the building on the same premises. The rent controller ordered the petitions on september 16, 1968. The respondent gave undertakings on september 20, 1968 under section 12 (2) of the act that on completion of the construction, he would deliver the same portions to the petitioners. One year time was granted to the respondent to complete the construction and one month thereafter, he was permitted to redeliver possession to the petitioners. Aggrieved by the order of demolition, the petitioners filed cma s. 22 and 23/68 respectively. The appellate court confirmed the order of the learned rent controller by its judgment dated march 12, 1970. During the pendency of the appeals, operation of the order of the learned rent controller was suspended. While dismissing the appeals, the appellate authority gave time upto may 12, 1970 for delivery of the possession to the respondent. Before the expiry of the time, the respondent had taken possession of the premises on april 27, 1970 and constructed the building, but the did not redeliver possession of the property to the petitioners. The petitioners gave notices to the respondent on january 10, 1971 calling upon him to re - deliver possession. In the reply dated january 20, 1971 instead of delivering the same property, the respondent offered to deliver a different property, which the petitioners refused to accept. As a result they filed i. A. Nos. 222 and 223 of 1971 on january 29, 1971 for redelivery of the possession. The learned rent controller by his order dated september 23, 1971 ordered redelivery of possession to the petitioners. Against that order, the respondent filed cma nos. 18 and 19 of 1971. The appellate authority by an order dated february 8, 1979, while upholding that the property should be redelivered to the petitioners, held that the i, as are not maintainable and directed to file applications for execution. In the interregnum, there is an injunction restraining the petitioner from seeking redelivery of the possession of the property. Thereafter immediately the petitioners filed eps. 178 and 179 of 1979 on july 21, 1979 for delivery of possession. Those petitioners were dismissed by the rent controller on two grounds. Firstly, there is delay in filing the applications and the delay has not been satisfactorily explained, secondly, the petitioners have not delivered possession to the respondent as per the direction given by the controller. Therefore, the petioners are not entitled to restitution of possession. Assailing the legality of this order, the present c. R. Ps have been filed,

(3) Sri n. Sesha chary, learned counsel for the petitioners, contends that the view of the court below on both the grounds is clearly illegal. Therefore, it warrants interference. Sri innayya reddy, learned counsel for the respondent, seeks to support the order on both the grounds. He contends, that once the petitioners had not delivered possession of the prpperty as per the orders of the controller, they contravened the order and. Therefore they are not entitled to the restitution of the property and in support thereof, he relied on the decisions in ramnath vs. Ramnath chhetiar and mohd. Mukaram ali vs. Khusro begum. He further contended that there is an obnormal delay in filing, the execution applications. The delay has not been explained under rule 23 of the a. P. Buildings (lease, rent and eviction) control rules and that if the application is not filed within six months, unless the delay is properly explained and the rent controller exercises power under the proviso to rule 23, the application cannot be ordered.

(4) The respective contentions give rise to the following questions : (1) whether the petitioners have commited default, in non - compliance of the order? (2) whether there is any delay in the filing of the execution petitions?

(5) Section 12 of the act postulates that if the controller is satisfied on an application filed by the landlord that the building is reasonably and bonafide required to carry out repairs or for demolition, then the controller is given power to pass an order directing the tenant to deliver possession of the building to the landlord before specified date. Under sub - section (2) thereof, before recovery of possession, the landlord shall give an undertaking that the building on completion will be offered to the tenant for his reoccupation before the expiry of such period as may be specified by the controller in this behalf.

(6) Jn this case,it is now found and not in dispute that the controller passed an order that the respondent gave written undertakings and that the controller directed construction within one year after demolition and deliver posession within one month thereafter. The respondent completed the construction sbut did not re - deliver possession. The petitioners gave notices to the respondent and the respondent did not give redelivery of possession, but offered to give different portions, which the petitioners are not obliged to occupy, as found by the appellate court in cma nos. 18 and 19 of 1971. The question is whether the petitioners have contravened the order passed by the controller. Nodoubt, the petitioners, as per the orders of the controller, did not deliver possession. They carried the matter in appeals in cma nos. 22 and 23 of 1986 and order of the controller was suspended. Ultimately, the appeals were dismissed and two months' time was granted by the appellate authority tp deliver possession. The date of expiry of time to deliver possession was may 12, 1970. Even before the expiry of time, the respondent had already taken possession on april 27, 1970 in execution of the decree. Under these circumstances, the only conclusion that could be drawn is that the petitioners have not contravened the orders of the controller. Hence the delivery of possession must be considered to be in compliance with the direction given by the controller under sub - section (2) of section 12 of the act. The ratio in the two decisions cited supra is inapplicable to the facts in this case for the reason that immediately in those cases, the tenant did not comply with in the time the direction given by the controller. In this case, even before the expiry of the period, the landlord has taken possession in execution of the decree.

(7) The next question is whether the petitions filed by the petitioners were barred by limitation. Rule 23 (1) of the rules postulates thus ;

"every application for the execution of orders passed under this act shall be in writing signed and verified by the decree - holder and filed before the controller within six months from the date of the order accompained by a certified copy of the order concerned together with the necessary process fee. Provided that an application may be admitted after the specified period, i f the applicant satisfies the controller that he has sufficient couse for not preferring the application within such period."

A reading thereof postulates that when there is an order which the i petitioner is seeking to enforce, an application shall be filed within six months from the date of the order and if there is any delay, unless the delay is satisfactorily explained by exercise of proviso thereto, the petition gets barred by limitation. Under section 12 (2) of the act, on completion of the tenant for his re - occupation before the expiry of such period as may be specified by the controller in this behalf.

(8) The question is whether the respondent has offered to the petitioners to re - eccupy the premises before the expiry of the period specified by the controller ? the controller specified one month's time from the data of the completion of the construction of the building. Admittedly, the respondent did not offer to the petitioners to reoccupy the premises which was reconstructed on the portions taken possession of by the respondent. The question is, in such situation, when the limitation begins to run. In my view the limitation begins to run on the date when the landlord offers to the tenants to re - occupy the portions which were reconstructed on the premises which was taken possession of before the demolition pursuant to the order passed under sub - section (1) of section 12 of the act. The offer made by the respondent pursuant to the notices given by the petitioners is not the same portions, but different portions. Therefore, as found by the appellate authority in the earlier proceedings, the petitioners are not bound to accept the offer. Admittedly, even till date there is no offer made by the respondent in respect of the premises which the respondent constructed cm the place on which the erstwhile tenements were existing and were reconstructed after demolition pursuant to the orders under sub - section (1) of section 12 of the act. Therefore the limitation did not begin to run against the petitioners. Even assuming that there is any delay in filing the applications, in my view, the delay has been satisfactorily explained. There is no evidence as to me date on which the: construction was completed. After coming to know of the completion the petitioners gave notices on january 10, 1971 for which the respondent give reply on january 27, 1971 offering different portions and 1. As were filed on january 29, 1971 which were pending and ultimately the appeals were allowed on february 8, 1979 holding that the i. As. Filed by the petitionars are not, maintainable. The execution petitions were filed on january 21, 1979. Thus the e. Ps. Were filed within six months from the date of the order passed by the appellate authority in cmas 18 and 19 of 1971. Under section 15 of the act, when the remedy was sought to be availed of by way of an execution through inter - locutory application, it is for the rent controller to consider whether it should be numbered on the original side or as a form of execution petition. When the substance of the matter is before the court, the form is of little consequence. The court would have converted the i. As. Into e. Ps and passed appropriate orders. That was not done. The respondent contested the matter on merits and the controller allowed the i. As. On appeal, the appellate court also accepted the contention of the petitioners, but rejected the petitions on the ground that applications would lie on the exaction; side. The appellate court also would have concerted the matters into e. Ps and directed the controller to take action under these circumstances the prosecution was diligently done by the petitioners and under section 14 of limitation act, 1963, 1963, the entire period has to be excluded from the purview of exercise of power under the proviso the rule 23 of the rules. The decisions relied on by sri innayya reddy are not applicable to the facts in this case in brij mohan vs. Maden mohan the counsel has given wrong advice. That wrong advice was not accepted to be a bonafide one. Therefore, section 14 of the limitation act, 1963 was held inapplicable. The decision in s. V. Krishnier vs. A. R. Ramachandra iyer is also a case where there is form prescribed under the statute. Instead of availing of the form, they prosecuted in a. Different form. Under those circumstances, the learned judge has held that section 14 does not apply to the facts in that. Case. In view of the facts in this case, i am of the view that the ratio laid down in the aforesaid decision is clearly inapplicable to the facts in this case. Accordingly, i hold that the e. Ps are within limitation. Even otherwise, the delay is properly explained. The delay is condoned. The order of the controller is set aside and there shall be a direction to the learned rent controller to issue a warrane for redelivery possession.

(9) The civil revision petitions are accordingly allowed, but in the circumstances, without costs.