Ram Nath & ANR Vs. M/S. Ram Nath
Chhittar Mal & Ors [1960] INSC 147 (8 September 1960)
KAPUR, J.L.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
P.B.
SUBBARAO, K.
WANCHOO, K.N.
CITATION: 1961 AIR 104 1961 SCR (1) 600
ACT:
Suit for ejectment Bona fide requirements for
rebuilding Delhi & Ajmer Rent Control Act, 1952 (38 of 1952), Ss. 13(g),
15.
HEADNOTE:
Three separate suits for eviction by the
appellant were brought against the three respondents within the framework of
the Delhi & Ajmer Rent Control Act and were based on the provisions of s.
13(g) for the bona fide requirements of rebuilding. Terms of compromise which
were substantially in accordance with the provisions of s. 15 of the Act were
put in by the parties and decrees were passed in the suits, under which the
premises had to be vacated by the respondents on a specified day, which
condition the respondents failed to observe and actually handed over the
possession of the premises in suit at a later date. On completion of the
building the respondents filed an application under s. 15 of the Act for their
being put into possession. The High Court inter alia held that though s. 15 of
the Act was not applicable to the proceedings yet the respondents could impose
the terms of the decree and the proceedings could be treated as execution
proceedings for enforcing the said terms. The appellants challenged the
judgments of the High Court and contended that on the facts of the case and the
circumstances, the decrees in suit under s. 13(1) proviso (d) shows that the
order was passed and a decree made in accordance with the terms of S. 15 of the
Act and further it was significant that the respondents themselves had made the
application to the Court under s. 15 of the Act. The respondents submitted that
the decree was not one under s. 15 of the Act because the decree was based on a
compromise and the time for giving possession was not. of the essence of the
contract :
Held, that as the tenant respondents did not
deliver possession of the premises to the landlord appellant on or before the
dates specified in the decree, the provisions of s. 15 (3) of the Delhi and
Ajmer Rent Control Act (38 of 1952) were not available to them and they were
not entitled to be put in possession.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 401 to 403 of 1960.
Appeals by special leave from the judgment
and orders dated March: 1, 1960, of the Punjab High Court 601 (Circuit Bench)
at Delhi in Civil Revision Cases Nos. 166-D, 167-D and 168-D of 1958.
A. V. Viswanatha Sastri, S. S. Chadha and R.
S. Narula, for the appellants (in all the appeals).
C. B. Aggarwala and B. Kishore, for the
respondents (in C. A. No. 401 of 60).
C. B. Aggarwala, R. M. Gupta and G. O.
Mathur, for the respondents (In C. As. Nos. 402 & 403 of 60).
1960. September 8. The Judgment of the Court
was delivered by KAPUR J.-These appeals are directed against three judgments
and orders of the Punjab High Court in three Civil Revisions Nos. 166-D, 167-D
and 168-D which were brought by the appellants against three of their tenants
under s. 35 of the Delhi & Ajmer Rent Control Act (XXXVIII of 1952),
hereinafter termed the Act. The appellants in all the three appeals are the
landlords and the respondents in the three appeals are three different tenants.
The appellants filed three separate suits for
the eviction of their three tenants under cl. (g) of proviso to s. 13(1) of the
Act on the ground that the premises were bona fide required for purposes of
rebuilding. On February 27, 1953, the parties in all the three suits entered
into a compromise in the following terms :
"We have compromised the case with the
plaintiff. A decree may be passed for Rs. 82/8/on account of rent in suit and
for ejectment in respect of the shop in suit in favour of the plaintiff against
the defendants' The defendants will vacate the shop by 4-3-53 and hand over
possession to the plaintiff and the plaintiff will hand over its possession
again (second time) to the defendants within six months from 4-3-53 after constructing
it afresh. We shall pay such rent as this court will fix ".
Thereupon the court passed the following
order and a decree followed thereon:" In terms of the statements of the
plaintiff., defendant and counsel for defendants a decree for Rs. 82/8/on
account of rent in suit be passed in favour 602 of the plaintiff against the
defendants. Also decree for ejectment be passed in respect of the shop in suit
in favour of the plaintiff against the defendants and that the defendants do
give possession of the shop in suit by 4-3-53 to the plaintiff and that the
plaintiff after constructing it afresh within six months from 4-3-53 give it to
the defendants. From out of the money deposited, a sum of Rs.
82/8/be paid to the plaintiff and the balance
returned to the defendants. The defendants shall be responsible to pay the rent
fixed by the court ".
According to the decree the possession was to
be given to the appellants on March 4, 1953, but it was actually delivered by
the three respondents between March 7 and 15, 1953. On the completion of the
building the three respondents filed three separate applications under s. 15 of
the Act for their being put into possession. These applications were filed on
October 7, 1953. The High Court held that the compromise did not comprise any
matter which was not the subject matter of the suit ; that the respondents
could enforce the terms of the decree in the proceedings which they took, i.
e., under s. 15 of the Act;
that time was not of the essence of the
compromise and therefore of the decree and consequently in spite of the
possession of the premises having been given by the respondents after the date
specified in the decree, i. e., March 4, 1953, the respondents were entitled to
enforce the decree by execution and apply for possession being restored to them
; at any rate they could apply for restitution under the inherent powers of the
Court. Thus the High Court was of the opinion that though s. 15(2) of the Act
was not applicable to the proceedings they could be treated as Execution
proceedings. Against this judgment and order the appellants have come in appeal
to this court by special leave.
Under s. 13 of the Act the respondents are
protected against eviction excepting for the reasons given in the proviso.
The appellants had filed the original suits
for eviction under s. 13, proviso (g), which was as under 603 Section
13:-" Notwithstanding anything to the contrary contained in any other law
or any contract, no decree or order for the recovery of possession of any premises
shall be passed by any court in favour of the landlord against any tenant
including a tenant whose tenancy is terminated):
Provided that nothing in this sub-section
shall apply to any suit or other proceeding for such recovery of possession if
the Court is satisfied(g) that the premises are bona fide required by the
landlord for the purpose of rebuilding the premises or for the replacement of
the premises by any building or for the erection of other building and that
such building or rebuilding cannot be carried out without the premises being
vacated ; ".
Thus when the suits were brought the
provisions of the Act were invoked. The decrees passed were on the basis that
the premises were required by the landlord for rebuilding which falls under s.
13 and the decrees also incorporated the requirements of s. 15 which provides:"The
Court shall, when passing any decree or order on the grounds specified in
clause (f) or clause (g) of the proviso to sub. section (1) of section 13
ascertain from the tenant whether he elects to be placed in occupation of the
premises 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 decree or 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
rebuilding, as the case may be.
(2) If the tenant delivers possession on or
before the date specified in the decree or order, the landlord shall, on the
completion of the work of repairs or building or rebuilding place the tenant in
occupation of the premises or part thereof.
(3) If, after the tenant has delivered
possession on or before the date specified in the decree or order the landlord
fails to commence the work of repairs or building or rebuilding within one
month of the specified date or fails to complete the work in a reasonable 604
time or having completed the work, fails to place the tenant in occupation of
the premises in accordance with sub-section (2), the Court may, on the
application of the tenant made within one year from the specified date, order
the landlord to place the tenant in occupation of the premises or part thereof
on the original terms and conditions or to pay to such tenant such compensation
as may be fixed by the Court".
The compromise, the order and the decree
provided (1) that the respondents will vacate their respective shops on March
4, 1953, and hand over possession to the appellants; (2) they elected to get
back possession after rebuilding, which the appellants agreed to hand back on
September 4, 1953; (3) the rent after such possession was to be determined by
the court. It was contended on behalf of the appellants that the above facts
taken with the circumstances that the decree was passed in a suit under s.
13(1), proviso (g), show that this was an order passed and a decree made in
accordance with the terms of s. 15 of the Act. It is significant that the
respondents themselves made the applications to the court under s. 15 of the
Act.
For the respondents it was argued that the
decree was not one under s. 15 of the Act because the decree was based on a
compromise whereby the parties fixed the date of delivery of possession to the
appellants; fixed the date for completion of the rebuilding and agreed between
themselves as to repossession by the respondents. It was submitted that
although the time for giving delivery to the appellants was fixed in the
compromise it was not of the essence of the contract.
In our opinion the contentions raised by the
appellants are well founded and the appellants must succeed. The suits for
eviction were brought within the framework of the Act and were based on the
provisions of s. 13, proviso (g). No eviction would have been possible
excepting when conditions laid down in s. 13 were satisfied. The decrees which
were passed were substantially in accordance with the provisions of s. 15 of
the Act and as was contended by the appellants they were decrees under which
the premises had to be vacated by the respondents on a specified day.
605 Under that section they had the right to
elect and did elect to get possession after rebuilding; this possession was 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 possession 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 s. 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 s. 15 contained in sub-s. (3) of that Act were not
available to them and they were ,not entitled to be put into possession as
prayed by them.
It was argued that the appellants had taken
possession of the premises after the specified date without protest and had
even accepted rent upto then and were therefore estopped from raising that
defence. The appellants had conceded in the court,% below that plea could be
raised in a suit if it was brought. In the view we have taken we think it
unnecessary to express any opinion oil this point.
The High Court was, in our opinion, in error
in ordering possession to be, delivered to the respondents. The appeals must
therefore be allowed and the judgments and orders of the High Court set aside.
The appellants will have their costs in this Court. One set of hearing Costs.
Appeal allowed.
Back
