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PETITIONER: RAM NATH AND ANOTHER

       Vs.

RESPONDENT: M/s.  RAM NATH CHHITTAR MAL AND  OTHERS

DATE OF JUDGMENT: 08/09/1960

BENCH: KAPUR, J.L. BENCH: 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  them- selves 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 posses- sion 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

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put in possession.

JUDGMENT: 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

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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

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(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 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 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.

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Appeal allowed. 606