RAMKRISHNA VISHNU MURTI Vs. LAXMINARAYAN CHUNILAL LAHOTI

JUDGEMENT

(1.) AN interesting point of law has been raised in this revision application by Mr. H. R. Gokhale, and that point is whether an order passed under Section 17 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (which shall hereafter be referred to as the Act) is an executable order, and it arises under these circumstances.

(2.) THE petitioner claims to be in possession of a portion of the suit house in Gurwar Peth at Karad. Opponent No. 1, Laxminarayan Chunilal Lahoti, was the tenant in respect of these premises. Opponents Nos. 2, 3 and 4 are the landlords. These landlords filed Suit No. 482 of 1946 for recovering possession from the tenant Laxminarayan Lahoti on the ground that the premises were reasonably and bona fide required by them for their personal occupation. The suit resulted in a decree in favour of the landlords. It appears, however, that the landlords did not in fact occupy these premises, and opponent No. 1, Laxminarayan Lahoti, therefore, filed an application, which was Miscellaneous Application No. 5 of 1952 on February 5, 1952, under Section 17 of the Act for restoration of possession on the ground that the landlords did not occupy the premises within the time prescribed. That application was allowed by the trial Court on October 19, 1955, and the landlords were directed to deliver possession of the suit premises to the applicant. There was an appeal against this decision, being Appeal No. 339 of 1955, which was dismissed on February 25, 1957, and a Civil Revision Application filed to this Court also came to be rejected. Then opponent No. 1, the tenant, filed Darkhast No. 77 of 1957 for enforcement of the order obtained by him, and that Darkhast was filed on April 5, 1957. Opponents Nos. 2 to 4, the landlords, were made parties to this darkhast as also one Vasudeo Gopal Bhurke, who was alleged to be put in possession of the southern portion of the premises. The present petitioner was not made a party to this darkhast. On August 8, 1957, a warrant for possession was issued regarding both the northern and the southern portions against the original plaintiffs -landlords and the said Bhurke, On September 11, 1957, the warrant was returned as it could not be executed in respect of the northern portion, because the petitioner Ramkrishna Udupi obstructed the execution of the warrant. So far as the present revision application is concerned, Bhurke is not impleaded and substantially we are concerned only with the northern portion of the suit premises. On September 26, 1957, opponent No. 1 applied for removing the obstruction caused by the petitioner, and that application was resisted by the petitioner by a written statement filed on December 24, 1957, in which he raised a two -fold contention. In the first instance, it was urged that he was in independent possession of the northern portion, and he was not in occupation of the premises through the landlords. Secondly, he contended that the order in Miscellaneous Application No. 5 of 1952 passed by the executing Court under Section 17 of the Rent Act was not an executable order and it could not be executed against him because he was not a party to the proceedings. His contention was that he was in possession of the northern portion by virtue of a Nokarnama executed by one Laxman Venkatesh Joshi. Now, the trial Court decided against the petitioner rejecting all his contentions. It was found that the petitioner had failed to prove an independent title from Laxman Venkatesh Joshi and that he appeared to have been put forward by the original opponents Nos. 2 to 4 the landlords. The trial Court also held that the order passed in darkhast No. 77 of 1957 under Section 17 of the Rent Act was an executable order, and, therefore, the Court could remove the obstruction raised by the petitioner in the execution proceedings. In accordance with these findings, an application filed by opponent No. 1 on September 26, 1957, for the removal of the obstruction of the petitioner was allowed and possession of the northern portion of the premises was also directed to be delivered to him after removing the obstruction of the petitioner, and opponents Nos. 2 to 4. It is against this order that the present revision application has been filed.

(3.) IN order to examine this argument, it will be necessary to refer to certain relevant provisions of the Act. Section 12 provides that ordinarily there shall be no ejectment of the tenant so long as he pays or is ready and willing to pay the standard rent and permitted increases. But the Act provides that the landlord can sue for recovery of possession on the ground of non -payment of the standard rent or permitted increases in certain cases. The landlord is also given a right to recover possession of any premises on the grounds mentioned in Section 13 of the Act, and as already pointed out the present suit was filed by opponents Nos. 2 to 4 under Section 13(1)(g) of the Act on the ground that the premises were reasonably and bona fide required by the landlords for personal occupation. It is necessary at this stage to refer to certian other clauses of Section 13, Under Clause (h) of Sub -section (1), a landlord may recover possession of any premises, if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for carrying out repairs which cannot be carried out without the premises being vacated. Under clause (hh) of Sub -section (1), the landlord will be similarly entitled to recover possession if the premises consist of not more than two floors and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building on the premises sought to be demolished. Under Clause (i), the landlord may recover possession of the premises, if the premises consist of land and such land is reasonably and bona fide required by the landlord for the erection of a new building. It may be mentioned that under Sub -section (3A) of Section 13, no decree for eviction shall be passed on the ground specified in Clause (hh) of Sub -section (1), unless the landlord produces at the time of the institution of the suit a certificate granted by the Tribunal under Sub -section (3B), and also gives an undertaking in accordance with the provisions of Clauses (a), (b) and (c) of Sub -section (3A). Then there are three sections viz. Sections 16, 17 and 17A which are intended to enable the tenant to recover back possession of the premises in certain cases. Under Section 16(1), the Court, when passing a decree on the ground specified in Clause (h) of Sub -section (1) of Section 13, that is to say, when the landlord requires the premises for carrying out the repairs which cannot be carried out without the premises being vacated, may 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, that fact is to be recorded in the decree. Under Sub -section (2) of Section 16, if the tenant delivers possession on or before the date specified in the decree the landlord shall give notice to the tenant of the date on which the said work of repairs shall be completed, and within 15 days from the date of receipt of such notice, the tenant shall intimate to the landlord his acceptance of the accommodation offered and deposit with the landlord rent for one month. If the tenant gives such intimation and makes the deposit, the landlord shall, on completion of the work of repairs, place the tenant in occupation of the premises or part thereof on the original terms and conditions. But if the tenant fails to give such intimation and to make the deposit, the tenant's right to occupy the premises shall terminate. Under Sub -section (3), if, after the tenant has delivered possession on or before the date specified in the decree, the landlord fails to commence the work of repairs within one month of the specified date or fails to complete the work within a reasonable 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 of the specified date, order the landlord to place him in occupation of the premises or part thereof on the original terms and conditions, and on such order being made the landlord and any person who may be in occupation shall give vacant possession to the tenant of the premises or part thereof. Under Sub -section (4) there is a penalty provided for the failure of the landlord to commence the work of repairs without reasonable excuse, or for the failure of the landlord or any other person to comply with the order made by the Court tinder Sub -section (5), and the landlord or any other person is liable to be punished with imprisonment for a term which may extend to three months or with fine or with both. Then comes Section 17, and it runs as follows: