Ram Nath and Another v. M/S. Ram Nath Chhittar Mal and Others

·

.KAPUR J.-These appeals are directed against Kapur J. three judgments and orders of the Punjab High Court in three Civil Revisions Nos. }66-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 plain- · tiff. 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 defen-dants. 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

G02 St:PRK\IE COURT REPORTS [ l!Hll] of the plaintiff a.gs.inst the defendants. Also decrco for Pjectmcnt be pa.sRCd in rcsprct of the shop in suit Nam .\'ath in favour of tb'e plaintiff against the defendants a.nd 6· A11otlur tba.t the defonda.nts do give possession of the shop in

v.

ft! ;s. Ham .Vath suit by 4-3-53 to the plaintiff a.nd t ha.t the plaintiff Chhillar Alai after constructing it afresh within six months from

Others 4-3-53 give it to the defendants. From out ·of the

monoy deposited, a. sum of Rs. 82/8/- be paid to the /(af'"' ]. plaintiff and the ha.la.nee returned to the defonda.nts.

The defendants shall be responsible to pa.y the rent fixed by the court ".'

According to the decree the possession was to he given to the appell1rnts on March 4, 1953, but it was actu-ally delivered by the three respondents between ~arch 7 and 15, I 953. On the completion of the building the three respoudents filed three separate applications under s. 15 of the Act for their being put into poRsession. These 11.pplications were filed on October 7, 1953. The High Court held that the com-promise did not comprise 11.ny matter which was not the subject matter of the suit; that tho respondents could enforc€l the terms of the decree in the proceed-ings 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 poAsession of the premises having been given by the respondents a.fter the date specified in the deere<1, i.e., Ma.rch (, 1953, t.be respondents were l'ntitlcd to enforce the decree hy execution and apply for posses-sion being restored to them; at a.ny rato they could a.pply for restitution under tho inherent powers of thn Court. Thi1s the High Court was of the opinion th1tt. though s. l!i(2) of the Aet wa.s not a.pplicabln to tbe proceedings they could bo treated 11.s Execution pro-ceeding8. AgainRt this judgment and ordn the appel-lants have come in appeal to this court by special lea. ve.

Under s. 13 of the Act the respondents a.re protect-ed 11.gainst cvirtio11 <·xrcpting for the r~a,;cms gil'en in the proYiso. The appellnnts . had filed the original suits for eviction und<>r s 13, proviso (g), wbinh wa.s a.s under:-

Section 13 :-" Notwithsts,niling s,nything to the contmry conts,ined in s,ny other law or any contract, Ra1n .1.Vath no decree or order for the recovery of possession of & Another any premises shall he passed by any court in favour v. of the landlord against any tens,nt (including s, tenant M/s. Ra:m Nath whose tenancy is terminated): Chhittar Mal & Others Provided that nothing in this sub-section shall apply to any suit or other proceeding for such reco-I<apur very of possession if the Court is satisfied- .

(g) that the premises are bona fide required by the landlord for the purpose of rebuilding the premi-ses 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 with-out 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 land-lord for rebuilding which falls under s. 13 and the decrees also incorpors,ted 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 ascer-tain 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 electic'ln 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 co:nmence the work of repairs or building or rebuild-ing, 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 occupat.ion 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 ;o,ne month Of the speci-fied date or fails to complete tlfe work in a. reasonable

604 SUPIU£l\IE COUltT REPOHTS [1961] time or having completed the work, fails to place the tenant in occupation of the premiRcs in accordance Ram Nath with sub.section (2), the Court ma.y, on the a.pplica.

Atiolht'

v. tion of the tenant ma.de within one year from the M /s. Ua.-t Nath specified date, order the landlord to place the tenant Chliittar Mal in occupation of the premises or pa.rt thereof on the

Otli~tS original terms a.nd conditions or to pa.y t-0 such tenant

such compensatioi1 as may be. fixed by the Court". The compromise, the order a.nd the decree provided (I) that the respondents will va.ca.te their respective shops on March 4, 1953, a.nd hand over possession to the a.vpella.nts; (2) they elected to get back possession· after rebuilding which the appellants a.greed to hand back on September 4, 1953; (3) the rent after such possession was t.o be determined by the court. It wa.s contended on behalf of the a.ppella.nts that the above facts taken with the circumstances that the .decree was passed in a. suit under s. 13( I), proviso (g), show that this was an order passed and a. decree made in accordance with tho terms of s. 15 of the Act. It is significant that the respondents. themselves madll the applications to the court under s. 15 of the Act.

l~or the respondents it was a.;gued that the decree wa.s 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 de.to for completion of the rebuilding a.ntl a.greed between themselves as to repoBBession by tho respondents. It was submitted that although the time for giving delivery to the a.ppella.nts wa.s fixed in the compromise it was not of the eBSence of the contract.

In our opinion the contentions raised by the appel-lants are well founded and the appellants must suc-ceed. The suits for eviction were brought within the framework of the Act and were based on the provi- .sions of s. 13, proviso (g). No eviction would have been possihle 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 appel-lants they 11·ere decrees under which the premises ha.d to be vacated by the respondents on a specified day. Under that section th~y had the right to elect and did r96o elect to get possession after rebuildfog ; this possess.

ion was to be given by the landlords to the tenants ' Ram N{fth & Another within a reasonable time and six months' period was v. fixed by consent between the parties and the rent, if Mis. R~m Nath the respondents wt>re not put into possession on the Chhittar Mal same terms as before, was tQ be settled by court and & Others that is what was done under the terms of the consent J. decree. The applications for being put into possession Kapur which were filed by the respondents were really under s. 15(3) of the Act. As the respondents did not deli-ver 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 takef1 posses.

sion 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 courts below that 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 on 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 judg.

ments and orders of the High Court set aside. The appellants will have their costs in this Court .. One set of hearing costs.

Appeal allowed.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 401 to 403 of 1960.

A ppea.ls by specie.I lea. ve from the judgment a.nd orders dated March 1, 1960, of the Punjab High Court

(Circuit Bench) at Delhi in Civil Revision Cases Nos.

_, I 166-D, 167-D and 168-D of 1958.

Ram Nath A. V. Viswanatha Sastri, S. S. Ohadha and R. S. & Another Narukl, for the appellants (in all the appeals). v. M/s. Ram Nath O. B. Aggarwala and B. Kishore, for the respondents Chhittar Mal (in C. A. No. 401 of60). & Others

O. B. Aggarwakl, R. M. Gupta and G. 0. Mathur, for the respondents (In C. As. Nos. 402 & 403 of 60).

1960. September 8. The Judgment of the Court was delivered by