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Ghanshyam Hazarimal And Another v. Nathmal Laxminarayan
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This matter is a further appeal in execution filed by the judgment-debtors (the defendants) and also disposes of Miscellaneous Civil Case No. 223 of 1974 (Ghanshyam and another v. Nathmal). The defendants challenged an order of the Additional Judge to the District Judge, Bhopal, which affirmed the 4th Civil Judge, Class II, Bhopal's rejection of their objection under section 47 of the Code of Civil Procedure to the executability of a decree. The defendants also filed a connected application under section 152 of the Code of Civil Procedure seeking amendment of the decree passed in Second Appeal No. 119 of 1972 (Hazarimal and another v. Nathmal), decided on 4-9-1972.
Background facts: The plaintiff sued for ejectment under section 12(1)(h) of the Madhya Pradesh Accommodation Control Act, 1961. The trial Court decreed the suit but failed to ascertain under section 18(1) of the Act whether the defendants (tenants) elected to be placed back in occupation after repairs/rebuilding and failed to specify a date by which they should deliver possession. On appeal the 3rd Additional District Judge directed the defendants to deliver possession on or before 15-2-1972. The defendants preferred a second appeal to this Court; in that second appeal Singh J. affirmed the decree for ejectment but did not appoint another date under section 18(1). When execution was attempted, the defendants objected under section 47 saying they had given notice of readiness to hand over possession and sought time to vacate; that objection was rejected by the Executing Court and the Additional District Judge.
Legal Issues Presented
- How is section 18 of the Madhya Pradesh Accommodation Control Act, 1961 to be construed in relation to the tenant's right of re-entry after repairs or rebuilding (specifically the requirement to specify a date under section 18(1))?
- Whether an appellate Court, when disposing of an appeal that affirms an eviction decree, is required or permitted to specify a fresh date under section 18(1) if the earlier date has become meaningless by reason of the appeal (including whether the Court may do so under inherent or other procedural powers such as sections 151 or 152 of the Code of Civil Procedure).
- Whether a tenant who elects re-entry but thereafter fails to deliver possession by the date specified (or who appeals instead of delivering possession) thereby forfeits the right of re-entry under section 18(2)–(3).
Arguments of the Parties
Appellants' (Defendants/Judgment-Debtors) Arguments
- The defendants objected under section 47 of the Code of Civil Procedure to execution, asserting that by their notice to the plaintiff they had stated they were ready to hand over possession as required by section 18(1) of the Madhya Pradesh Accommodation Control Act, 1961, and therefore the Executing Court should give them time to vacate.
- Reliance was placed (by implication, through citation) on the view expressed by Raina J. in Chandrashekhar v. Niyamatram that where a date specified under section 18(1) becomes meaningless as a result of an appeal, the appellate Court should specify a fresh date (and may do so under inherent powers such as section 151 and section 152 of the Code of Civil Procedure) so as to preserve the tenant's statutory right.
Respondent's (Plaintiff) Arguments
The opinion does not contain a detailed account of the respondent's (plaintiff's) legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chandrashekhar v. Niyamatram (1972 M PL J ...) | Observation (Raina J.): where a date specified under section 18(1) has become meaningless due to an appeal, the appellate Court should specify a fresh date; the appellate Court can exercise inherent powers (section 151 and section 152 CPC) to rectify omission so that the tenant is not prejudiced. | The Court considered this view but rejected it as not correct in light of higher and consistent authorities; the opinion states Raina J.'s attention was not apparently drawn to relevant Supreme Court and High Court decisions and thus declines to follow this approach. |
| Ram Nath v. M/s. Ram Nath Chhittar Mal, AIR 1961 SC 104 | Interpreting an analogous provision (section 15(3) of the Delhi and Ajmer Rent Control Act, 1952): where tenants did not deliver possession on or before dates specified in the decree they were not entitled to be put back into possession under the statutory provision. | The Court relied on this Supreme Court decision to support the proposition that the right of re-entry is conditional on the tenant delivering possession by the specified date and that failing to do so precludes the statutory remedy. |
| Hargovind v. Smt. Sunder Bai, 1970 J L J (N) 123 | Authority supporting that the tenant must deliver possession to the landlord on or before the date fixed to preserve the right of re-entry; the statutory right is conditional. | Used by the Court to reinforce the interpretation that the right of re-entry is a concession dependent on fulfilling the condition precedent (delivery by the specified date). |
| Babulal and another v. Mahabir Pershad, 1973 J L J (N) 77 | Authority stating that if the tenant fails to deliver possession by the specified date he forfeits the right of re-entry; section 18(3) must be strictly construed. | Relied upon by the Court for the strict-construction approach and for the conclusion that the tenant must fulfill the condition exactly to retain the privilege. |
| Vijay Kumar and others v. Shrimati Mahadevi and others, Second Appeal No.151 of 1967 (decided 21-8-1971) | An earlier pronouncement by the same Court: the Act does not contemplate that an appellate Court, when hearing an appeal against a decree under section 12(1)(h), should make a fresh direction under section 18(1); an appellate Court may refrain from making such a fresh direction. | The present Court cited and followed this view (including a quotation) to support its position that it would not make a fresh direction under section 18(1) in the circumstances of the case. |
Court's Reasoning and Analysis
The Court framed the dispute as essentially a question of construction of section 18 of the Madhya Pradesh Accommodation Control Act, 1961. The analysis proceeded in discrete steps, reflecting statutory text, the scheme of the Act and the case law cited in the opinion:
- Identification of statutory duty: Section 18(1) imposes a duty on the Court making an eviction order under section 12(1)(g) or (h) to ascertain from the tenant whether he elects to be placed back in occupation after repairs or rebuilding and, if so, to record that election and specify the date on or before which the tenant shall deliver possession to enable the landlord to commence the work.
- Statutory conditions precedent and their consequences: The Court noted that subsections (2) and (3) make clear the right of re-entry is a concession contingent on the tenant delivering possession by the date specified in the decree. If the tenant fails to deliver possession on or before that date, he forfeits the right of re-entry; section 18(3) must be construed strictly.
- On the meaning of "Court": The Court accepted that the word "Court" in section 18(1) includes appellate Courts; thus if the suit is decreed on appeal the appellate Court has the duty to perform the section 18(1) functions (ascertain election and specify delivery date) when disposing of the appeal.
- Limits where the tenant does not comply: The Act, however, does not provide that where the tenant, having elected re-entry, does not abide by that election and instead files an appeal, the appellate Court is required to specify another date. The Court emphasized that the tenant must make a choice: if he does not stand by his election (i.e., by delivering possession by the date), he forfeits the right of re-entry.
- Treatment of contrary authority: The opinion addressed Raina J.'s observations in Chandrashekhar v. Niyamatram (which suggested the appellate Court should specify a fresh date and could do so under sections 151 and 152 CPC). The present Court rejected that approach as inconsistent with binding Supreme Court authority (Ram Nath) and with High Court precedents (Hargovind and Babulal), which collectively require strict observance of the condition precedent and preclude allowing the statutory remedy where the tenant has failed to deliver possession by the date.
- Reliance on prior local decision: The Court also cited and followed its own prior observation in Vijay Kumar v. Shrimati Mahadevi (Second Appeal No.151 of 1967) that the Act does not contemplate that an appellate Court must make a fresh direction in terms of section 18(1) when disposing of an appeal in such circumstances.
- Conclusion from the foregoing: Because the tenant did not comply with the delivery condition and because the statute does not compel an appellate Court to make a fresh date in such circumstances (and given binding authority to the contrary), the defendants' objection under section 47 and their application under section 152 to amend the decree could not succeed.
Holding and Implications
Final Holding: The appeal in execution and the connected application under section 152 were dismissed. The Court ordered both the appeal and the application to fail and be dismissed with costs; counsel's fee in the appeal was fixed at Rs. 50 if certified. The opinion concludes succinctly: "Appeal dismissed."
Implications:
- The direct effect on the parties is that the defendants' objection under section 47 and their application under section 152 were rejected; the decree remains executable as affirmed by the lower Courts.
- The Court reaffirmed the principle that the tenant's statutory right of re-entry under section 18(2)–(3) is conditional on strict compliance with the condition precedent (delivery of possession on or before the date specified). Failure to comply results in forfeiture of that right.
- The Court declined to follow the approach that an appellate Court should or must specify a fresh date (or do so under inherent procedural powers) where the tenant fails to deliver possession and prosecutes an appeal; instead it followed Supreme Court and High Court authorities requiring strict application of the statutory condition.
- No broader novel precedent or change in law is announced; the Court applied existing authority and statutory construction to resolve the case, returning the matter to the ordinary consequences prescribed by the statute (i.e., forfeiture of re-entry when the condition precedent is not met).
Costs: The decree was enforced as confirmed; costs awarded to the successful party; counsel fee specified as Rs. 50 if certified.
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 plaintiff's 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 sub-section (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 by 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 M PL J 7-0-1972 J LJ 464.
''Section 18 confers a very valuable right on the tenant and casts a duty on the Court to do the needful in order to enable him to exercise that right. A Court of appeal is invested with all the powers of the trial Court and where the trial Court fails to perform an important duty cast upon it by the legislature, the appellate Court can itself perform that duty while dealing with an appeal. The appellate Court can step in to perform this duty where the trial Court has failed to do so."
"Where the date specified by the Courts below under sub-section (1) of section 1s has become meaningless as a result of the appeal it is the duty of the appellate Court to specify a fresh date for the purpose of sub-section (i) of section 18. It is obvious that this Court failed to perform this duty through inadvertence while disposing of the appeal and this omission can now be rectified by this Court in exercise of its powers under section 151 read with section 152 of the Code of Civil Procedure. It is a cardinal principle of justice that no one shall be injured by an act or omission on the part of the Court. The Court can, therefore, very well do the needful in exercise of its inherent powers under section 151 as well as under section 152, Civil Procedure Code the Court has inherent powers to act ex debit justified to do real and substantial justice which is its chief function. The applicant cannot, therefore, be denied the benefit of sub-section (2) of section 18 of the Act."
In that view, Raina J. who had heard the second appeal in that case, specified the date on which possession was delivered in execution of the decree as the date for delivery of possession for purposes of section 18 (1) of the Act.
7. In view of the settled law, the view of Raina J. in Chandrashekhar v. Niyamatram (supra) does not appear to be correct. His attention was apparently not drawn to the decision of the Supreme Court in Ram Nath v. M/s. Ram Nath Chhittar Mal AIR 1961 S C 104, and that of this Court in Hargovind v. Smt. Sunder Bai 1970 J L J (N) 123, and Babulal and another v. Mahabir Pershad 1973 J L J (N) 77.
8. Under the scheme of the Act, the Court is enjoined with a duty under section 18 (1) while passing a decree under section 12 (1) (h) to ascertain from the tenant whether he elects to be placed in occupation of the accommodation, from which he is to be evicted, and if he so elects, shall record a 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 re-building, as the case may be.
9. It is plain from the provisions of sub-sections (2) and (3) of section 18 that the right of re-entry is given to the tenant as a concession on the fulfillment of the conditions precedent, namely, that the tenant must deliver possession of the accommodation to the landlord 911, or before the dates specified in the decree. Hargovind v. Smt. Sunder Bai (supra). If the tenant fails to do so, he forfeits the right of re-entry. Babulal and another v. Mahabir Pershad (supra). The provision of section 18 (3) has to be construed strictly and the tenant planting that privilege, must fulfill it exactly. After all, the right of re-entry is given to him as a concession on the fulfillment of the condition precedent.
10. In Ram Nath v. Ram Nath Chittar Mai (supra), their Lordships, while interpreting the analogous provision contained in section 15 (3) of the Delhi and Ajmer Rent Control Act, 1952, observed as follows:-
Under that section they had the right to elect and did elect to get possession after re-building. this 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 a 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 subsection (3) of that Act were not available to them and they were not entitled to be put into, possession as prayed by them."
11. 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.
12. 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. In Second Appeal No. 151 of 1967 Vijay Kumar and others v. Shrimati Mahadevi and others decided on 21-8-1971, in similar circumstances, I had occasion to observe-
"I refrain from making any direction under section 18 (1) of the Act. The Act nowhere contemplates that an appellate Court in hearing an appeal against a decree under section 12 (1) (h) should make a fresh direction in terms of section 18 (1). Such a direction was made by the learned Additional District Judge and the matter must rest at that."I find no reason to take a different view now.
13. The result, therefore, is that, both, the appeal as well as application, must fail and are accordingly dismissed with costs. Counsel's fee, in appeal, Rs.50, if certified.
Appeal dismissed.
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