Decided on September 25,1979



N.H.BHATT - (1.) This is the revision application under sec. 29(2) of the Bombay Rent Act by the owners of business premises at Rajkot who have thrown all moral and ethical standards to wind for the purpose of their selfish ends and had it not been for jurisdictional difficulty raised by them I would have happily rejected their revision application.
(2.) A few facts requires to be stated. These applicants-landlords had filed in the competent rent court of Rajkot a Regular Civil Suit No. 298 against the deceased tenant Bhaichand Virchandbhai whose three sons opponents Nos. 1 2 and 3 are his heirs and legal representatives. The said suit filed by the applicants-landlords in the court of the Civil Judge Senior Division Rajkot was for possession of the tended property godown 22x 8.2 on the ground that the premises were reasonably and bona fide required by them for carrying out the repairs which could not be carried out without the premises being vacated. The suit was filed on 31 March 1971 On 27th April 1971 the parties entered into compromise which is Ex. 39. Ex.38 on the record of the present proceedings is the plaint in that suit. As per the compromise Ex. 39 the landlords agreed that the deceased Bhaichand Virchandbhai was continued to be a tenant of the premises; that he continued to be in possession of the premises; that the landlords were permitted entry on the rented property for the purpose of effecting demolition and reconstruction of the premises to be completed by them within the six months i.e. by 31st October 1971 that if the landlords failed to reconstruct the property within that stipulated time the tenant-Bhaichand Virchand was at liberty to get the work completed at the cost of the landlords and that the rent for the premises was to be paid by the tenant at the rate of Rs. 50/per month on and from 1971 The learned Judge before whom the compromise Ex. 39 was presented passed the following order:- "Plaintiffs defendant and advocate of plaintiffs are present. They admitted the contents of compromise. Decree to be drawn in terms of compromise". The formal decree as per Ex. 40 came to be also drawn by the learned Judge. Thereafter the landlords demolished the property and started reconstruction. Then on 1-12-1971 the deceased tenant Bhaichand Virchand sent a telegraphic notice to the landlords in the following terms:- "Remove your materials from my clients rented godown situated near Alfred High School within 24 hours otherwise my client lodging criminal complaints against you and you liable for all consequences". The landlords gave reply Ex. 42 on 14-12-71. The landlords informed the tenant that the work of renovation was going on and the landlords were keen to finish the constructional work as early as possible and that there was no case for any threat of prosecution. The building then came to be fully constructed but the landlords were in no mood to allow the tenant entry on the premises. So deceased Bhaichand Virchandbhai the tenant filed an application before the court which came to be registered as Misc. Application No. 252/72. The application purported to be one under sec. 16(3) of the Bombay Rent Act and the prayer was that the landlords be directed to hand over the possession to the tenant pursuant to the decree passed in the above mentioned suit No. 298/71. The landlords could successfully thwart the tenants attempts to have the expeditious justice and the applicant-tenant Bhaichand Virchand died in the year 1975 and his heirs the present opponent Nos. 1 2 and 3 prosecuted the said application. In the year 1973 the landlords whose malignant design is a matter of non-challenge inducted M/s. Talsania & Brothers as their new tenant in the godown in question and so the said tenant was impleaded as a party and this firm is the opponent No. 4 in this application After the keen contest the trial court by its judgment dt. 18th July 1977 passed the order of eviction of the opponent No. 4 and a direction to the landlords to place the applicants in occupation of the premises. The landlords moved the District Court by filing Revision Application No. 20/77 which came to be rejected by the learned District Judge by his order dt. 30th January 1978 Being aggrieved by the said order the original landlords moved this court by filing the present Revision Application essentially on the ground that the court had no jurisdiction to entertain such an application under sec. 16(3) of the Bombay Rent Act.
(3.) Sec. 16(3) which is material for our purpose is quoted below:- "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-sec. (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". Both the courts below held that the decree that was passed was the one under sec. 13(1)(h) of the Bombay Rent Act and therefore the provisions of sec. 16 of the Act were squarely attracted. The moot question that arises before me is whether the decree in question can be said to be one under sec. 13(1)(h) of the Rent Act or alternatively under sec. 13(1)(hh) of the Act as Mr. S. M. Shah for the opponents Nos. 1 2 and 3 tried to alternatively urge before me in the course of his submissions. If it is held that the decree was under sec. 13(1)(h) sec. 16 would be squarely attracted. If the decree can be interpreted to be one under sec. 13(1)(hh) sec. 17 would be there to stand by the tenant. However to me it appears that it is inevitable to hold that the decree in question would fall under neither of the provisions. It is a decree by itself without falling under any provisions like sec. 13 (1)(h) of 13(1)(hh). It was a decree to read between the lines granting liberty to the landlords to enter the premises as the licensees to effect demolition and to bring about reconstruction the tenant all the while retaining the possession of the property. This is the highest level to which the decree can be put and if it be so it cannot be said to be a decree of eviction under sec. 13(1)(h) or sec. 13(1)(hh). Mr. S. M. Shah for the tenants had strained very hard to bring the decree Ex. 40 under either of the provisions but despite my tremendous sympathy for the opponents I feel almost helpless in the matter. The first reason against the plea is that there is no decree of eviction but it is a decree granting license to the tenant. Secondly the decree cannot fall under sec. 13(1)(h) because the compromise very clearly shows that there was no question of repairs but it was a question of total demolition and reconstruction. The third reason is that requirements of secs. 16(1) and 16 are not at all there mentioned in the consent terms. Had the decree been under sec. 13(1)(h) the court was required to ascertain from the tenant whether he had elected to be placed in the premises or part thereof and if the tenant so elected it was to be recorded in the decree and the date on or before which the tenant was to hand over possession was to be specified in the decree. Nothing of the sort is there in the decree though no doubt it mentions that it was open to the landlords to commence work the following day. Fourthly sub-sec. (2) of sec. 16 requires that the landlord has to give notice two months before the date on which the repair work was likely to be completed and the tenant is required to intimate to the landlord his acceptance of the accommodation offered and deposit with the landlord rent for one month. The absence of any such provision in the compromise apart from the absence of any decree of eviction makes it abundantly clear that the parties did not intend to have the decree of evocation under sec. 13(1)(h).;

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