N.K. Mody, J.@mdashBeing aggrieved by the judgment dated 04/12/01 passed by Additional District Judge, Indore in Civil Regular Appeal No. 30/01 whereby the order dated 28/02/01 passed by learned X Civil Judge, Class-II, Indore in MJC No. 5/99 was set aside, the present appeal has been filed, which has been admitted by this Court on the following substantial question of law vide order dated 15/07/02:
1. Whether lower appellate Court was justified in reversing the judgment passed by the trial Court which had allowed the application made by Appellant (tenant) u/s 18(3) of M.P. Accommodation Control Act?
2. Whether in the facts and circumstances of the case, Appellant (tenant) has made out a case for grant of mandatory order as contemplated u/s 18(3) of the Act to be passed against the landlord?
2. Short facts of the case are that the Respondent filed a suit for eviction against the Appellant u/s 12(l)(a)(f) & (h) of M.P. Accommodation Control Act (which shall be referred hereinafter as an "Act") on 05/08/91 alleging that the Appellant is tenant in the suit accommodation @ Rs. 200/- per month. The suit was contested by the Appellants on all the grounds. After framing of issues and recording of evidence, suit filed by the Respondent was dismissed u/s 12(l)(a) & (f) of the Act. However, decree of eviction was passed against the Appellants u/s 12(l)(h) of the Act. Against the judgment and decree passed by the learned trial Court appeal was filed by the Appellant which was dismissed vide judgment dated 14/05/97 and the judgment and decree passed by the learned trial Court was maintained. In the appeal cross-objections were also filed by the Respondent, wherein it was prayed that the learned trial Court committed error in not passing the decree u/s 12(l)(a) & (f) of the Act. While dismissing the appeal cross-objections were also dismissed. Against the decree passed by the learned Appellate Court second appeal was filed by the Appellants before this Court, which was numbered as SA. No. 248/97 and was dismissed on 02/09/98 with a further direction to the Appellants to handover the possession to the landlord / Respondent within a period of three months from the date of judgment.
3. Instead of handing over the possession Appellants moved an application before this Court for clerification that no time has been fixed for completion of construction, therefore, Respondent be directed to complete the construction within the stipulated time. This application was filed on 10/11/98 and was numbered as MCC No. 608/98. Since the application could not be disposed of before the date when the possession was to be handed over as per the order of this Court, therefore, Appellants handed over the possession of suit accommodation on 30/11/98. Thereafter the application filed by the Appellants which was numbered as MCC No. 608/98 and was dismissed on 05/03/99 with an observation that after handing over the possession Appellants shall be at liberty to move an appropriate application before the learned trial Court u/s 18(3) of the Act. Thereafter in the month of March, 1998 Appellants moved an application before the learned trial Court u/s 18(3) of the Act wherein it was prayed that since no construction has been raised by the Respondent, therefore, Appellants be given possession of the suit accommodation.
4. The application was opposed by the Respondent. After holding a summary enquiry the application was allowed and vide order dated 28/02/01 it was directed that possession of the Appellants be restored. Against the order passed by the learned trial Court first appeal was filed by the Respondent which was allowed vide order dated 04/12/01. During pendency of the appeal, in compliance of execution of the order passed by the learned trial Court, possession of the suit accommodation was taken by the Appellants through Court on 03/08/01. Thereafter, appeal filed by the Respondent was allowed vide judgment dated 04/12/01. An effort was made by the Respondent for restitution of possession. However, the same was stayed by this Court while admitting the appeal.
5. Mr. AK. Sethi, learned senior counsel for the Appellants argued at length and submits that the impugned judgment passed by the learned Appellate Court is illegal, incorrect and deserves to be set aside. It is submitted that the decree was obtained by the Respondent u/s 12(l)(h) of the Act fradulently. It is submitted that no action was taken by the Respondent for raising the construction while it was mandatory on the part of Respondent to construct the shop as per decree. It is submitted that the only ground on the basis of which the appeal filed by the Respondent was allowed was that the suit accommodation has been demolished, therefore, there is nothing of which the possession can be . restored. It is submitted that it is true that the accommodation which was constructed over the suit land was removed by the Respondent after obtaining the possession, but the vacant land was there and the Appellants are in occupation of land by putting the tin shade over the suit property. It is submitted that Section 108 of Transfer of Property Act protects the right of Appellants / tenant. It is submitted that Respondent can not be benefited for his own wrong. It is submitted that if the Respondent was not in a position to get the sanctioned map renewed, then the Respondent was not required to take possession of the suit accommodation from the Appellants and ought not to have demolish. It is submitted that the act of Respondent was with full of malafides. Learned Counsel further submits that since the decree was passed u/s 12(l)(h) of the Act, therefore, the tenancy of the Appellants was not terminated, but was suspended for the time being, so as to enable the Respondent to raise the construction over the suit property. Learned Counsel placed reliance on a decision of Kerala High Court in the matter of George J. Ovungal v. Peter, AIR 1991 Kerala 55 wherein it was held that destruction of leased house or shop-room does not by itself determine lease of the land on which it stands and put an end to the landlord-tenant relationship. Further reliance is placed on a decision in the matter of
6. Mr. Ms. Dwivedi, learned Counsel for Respondent submits that after passing of the decree Respondent has demolished the property wherein the suit accommodation was situated, but because of financial crises could not construct the house. It is submitted that since the suit property is no more in existence, therefore, question of reentry does not arise and the learned Appellate Court has rightly set aside the judgment passed by the learned trial Court. Learned Counsel placed reliance on a decision in the matter of Shrikrishnadas v. Radhabhai 1969 JLJ 552 wherein building let out demolish, this Court has held that u/s 18(3) of the Act Court can not redeliver possession to tenant under inherent poweRs. It was also observed that inherent powers cannot be so exercised as to set at naught the specific provisions of the CPC or any other statute, as there is a specific provision in Section 18(3) of the M.P. Accommodation Control Act, 1961. The Court cannot exercise inherent power to redeliver possession when the requirements of that section are not fulfilled. Learned Counsel submits that in the facts and circumstances of the case, appeal filed by the Appellants be dismissed.
7. From perusal of the record it is evident that in the suit filed by the repsondent decree of eviction was passed against the Appellants u/s 12(l)(h) of MP. Accommodation Control Act and in Second Appeal vide judgment dated 02/09/98 Appellants were directed to handover the possession within three months. In compliance of that possession was handed over by the Appellants on 30/11/98. MCC filed by the Appellants was dismissed on 05/03/09 with a liberty to move an appropriate application before the learned trial Court u/s 18(3) of M.P. Accommodation Control Act after handing over the possession of the suit accommodation. In compliance of that, application was filed by the Appellants u/s 18(3) of M.P. Accommodation Control Act. The application was allowed and vide judgment dated 28/02/01 learned trial Court directed the Respondent to give vacant possession of the suit accommodation. Since the accommodation has been demolished by Respondent, therefore, in execution the possession of open land upon which the suit accommodation was constructed was given to the Appellants. Since tenancy subsists and Appellants were having a right of reentry u/s 18(3) of M.P. Accommodation Control Act and the accommodation could not be constructed for no fault of the Appellants, therefore, neither Appellants can be punished nor Respondent can be rewarded for his own fault. Since no time limit was fixed by this Court for construction of house while deciding the appeal, therefore, the Appellants were having a doubt about the bonafides of the Respondent. Therefore, only before delivery of possession, application was filed by the Appellants before this Court.
8. In the opinion of this Court, learned Appellate Court was not justified in reversing the order passed by the learned Trial Court. In view of this, appeal filed by the Appellants is allowed and the impugned judgment passed by the learned Appellate Court is set aside and the order passed by the learned trial Court is restored.
9. With the aforesaid observations, appeal stands disposed of. No order as to costs. C.C. as per rules.
