Author: Deepak Panwar

The Madhya Pradesh Accommodation Control Act, 1961

Interpretation

HEERA TRADERS

v.

KAMLA JAIN

Civil Appeal Nos. 5996-5997 of  2021

FEBRUARY 22, 2022

[K.M JOSEPH AND  PAMIDIGHANTAM SRI NARASIMHA, JJ. ]

 The Madhya Pradesh Accommodation Control Act, 1961 – Ss. 13,  12(1)(a),(c),(f),(h) – Respondent is the landlady of the Appellants – The appellant was inducted as a tenant of a non- residential accommodation of 150 sq.f. for a monthly rent of Rs. 847/- in the year 1975 – Respondent filed a suit u/ss. 12(1) (a), (c), (f) and (h) of 1961 Act – Apart from eviction the respondent also sought a decree for mesne profit – The trial court decreed the suit and ordered eviction – First Appeal filed by the appellant stood dismissed – The appellant filed a Second Appeal in which an interim order against eviction was passed – Thereafter the respondent filed an application for Appropriate Directions as Reply to the application under Or. 41 R. 5 of CPC – Later on, the Second Appeal came to be admitted and the interim order came to be made absolute – The court proceeded to pass the impugned order directing the appellant to pay the mesne profit of Rs. 18000/- per month, on the basis of the Report submitted by the Rent Controlling Authority – On appeal, held: The Judgment in Atma Ram makes it clear that the erstwhile statutory tenant would become an unauthorised occupant upon the passing of the Order by the original Forum – Even though S. 13 does refer to the erstwhile tenant as a tenant and it obliges him to deposit throughout the proceedings, the amounts, which can be treated as the rent being paid, which would be contractual rent or even the rent fixed as the standard rent, this does not, by itself, alter the effect of the Decree/Order of Eviction passed by the Court, by which, he stood deprived of the status of a tenant – The filing of an appeal or other proceeding by the tenant, does not make the Decree inexecutable – The preferring of an appeal or other proceeding, would not bring about a stay of the proceedings based on the Decree or Order of Eviction – The payment of the amounts under S. 13(1) or S. 13(2) of the Act, does not, by itself, bring about the stay of the Decree or Order of Eviction – With the passing of the Order of Eviction by the Court, the possession of erstwhile tenant, becoming wrongful, will apply – By making the payments, contemplated in S. 13(1) or S. 13(2) of the Act, the erstwhile tenant, who stood deprived of the status of a tenant, does not regain the said status by mere reason of the fact that in S. 13 of the Act, he is referred to as the tenant – Therefore, S. 13 of the Act, despite the unique provision contained therein, does not affect the position at law, which stands declared in Atma Ram – the appellants in these cases, despite making payment, in accordance with S. 13 of the Act, would not be protected from being evicted in terms of the Decree/Order of Eviction during the pendency of the appeal or proceeding – It is open to the Appellate Court, to impose such condition, as it thinks fit – It can issue directions, as held in Supermax International – With the Decree of Eviction being passed, the erstwhile tenant becomes an unauthorised occupant and such an erstwhile tenant can, indeed, be called upon to pay mesne profits – Compliance with S. 13 by the appellants, does not amount to a stay of the Decree for Eviction – The power of the Appellate Court to impose conditions for staying the Decree, cannot be confined by the dictate in S. 13 of the Act – The contention of the appellants that S. 13 of the Act will detract from the principle in Atma Ram and Supermax International being available to the cases under the Act, rejected – The direction to pay the entire amount, may require modification and some time must be granted to deposit the amount – Appellants granted 5 weeks to deposit the entire amount in terms of the impugned orders after adjusting the amounts already deposited/paid on the basis of the orders of the execution court – The amounts will also subsume the amounts paid/payable u/s 13 of the Act – The respondent shall be permitted to withdraw the rent at the rate of Rs.10,000/- per month from the amount which is deposited – Respondent shall be permitted to withdraw at the rate of Rs.10,000/- per month from the amount to be deposited by the appellants, on such terms to be fixed by the High Court.

The Madhya Pradesh Accommodation Control Act, 1961 – Ss. 13 – Protection against eviction – Whether in a Second Appeal, filed by the tenant, against whom an Order/Decree of Eviction is passed, on a ground, other than u/s. 12(1)(a), even after the tenant complies with the requirement of S. 13 and deposits the rent, whether the Appellate Court, when approached by the appellants- tenants, seeking a stay of the execution of the Decree u/Or. XLI R. 5 of CPC, they could be asked to deposit an amount representing a reasonable market value of the rent –  In the Act, the definition of the word “tenant”, does not include a person against whom an Order or Decree of Eviction has been passed – The principle in Atma Ram Properties, therefore, would apply unless S. 13 poses an obstacle in the path of the Appellate Court directing the payment of the mesne profits by the appellants as a condition of stay of execution – S. 13 (6) deals with a situation where the tenant fails to deposit or pay the amount u/s 13 of the Act – Prior to S. 13 being substituted in the year 1983 it contemplated that the court may strike out the defence against eviction and proceed with the hearing of the suit – By virtue of the substitution in the year 1983 in S. 13 (6) in view of the addition of the words ‘appeal or proceeding as the case may be’, on the failure of the tenant to deposit or pay the amount as required by S. 13 the court is empowered to strike out the defence against eviction is made applicable to an appeal or proceeding by the tenant – An appeal and proceeding can be disposed off which essentially means that an Order of Eviction would ordinarily follow as the appeal or other proceeding by the tenant is against an Order of Eviction which is already passed – What would be the position if the tenant faithfully complies with the mandate of S. 13 and has deposited/ paid the amount – There is no express intention expressed by the law giver in this regard in S. 13 – The mere payment of the amount in terms of Section 13 would not shelter the tenant who has filed a revision referred to in Section 23H from being proceeded against in execution of the decree – An order of stay of eviction may still be necessary u/s 23H – Thus, the payment of the amount mentioned in S. 13 in a Chapter III proceeding by itself may not result in a stay of the decree or Order of Eviction.

Interpretation – Principles of – The heading of a section cannot control the construction of the provision itself – The provision, as it unfolds under the heading, must be given the full meaning according to the principles of interpretation, which the court is persuaded to apply – The only area where the heading may be useful is when the provision is shrouded in ambiguity – The heading may shed some light, however, faint it may be.

Restitution of property under section 144 of Code of Civil Procedure, no need to sell whole of the property if attached, when only a portion would be sufficient.

Case :-

BHIKCHAND S/O DHONDIRAM MUTHA (DECEASED) THROUGH LRS.                       

Versus 

SHAMABAI DHANRAJ GUGALE (DECEASED) THROUGH LRS

Legal Issue :-

The legal issue in this appeal, concerns restitution of a judgment debtor on a decree being varied, reversed, set aside or modified as it is statutorily recognised in Section 144 of the Code of Civil Procedure, 1908.

The decree passed by the Trial Court in the present case was varied by the appeal court. However, in the meantime, the decree was executed by sale of the judgment debtor’s property on 23.09.1985 in favour of the decree holders. (Para 1)

HELD :-

1. It is, thus, settled principle of law that court’s power to auction any property or part thereof is not just a discretion but an obligation imposed on the Court and the sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. In the case at hand, the Executing Court did not discharge its duty to ascertain whether the sale of a part of the attached property would be sufficient to satisfy the decree. When the valuation of three attached properties is mentioned in the attachment Panchanama, it was the duty of the Court to have satisfied itself on this aspect and having failed to do so the Court has caused great injustice to the judgment debtor by auctioning his entire attached properties causing huge loss to the judgment debtor and undue benefit to the auction purchaser. The fact that the properties were sold for a sum of Rs. 34,000/- would further demonstrate that the decree holder who himself is the auction purchaser has calculatedly offered a bid at Rs. 34,000/- despite being aware that the value of the attached properties is Rs. 1,05,700/-. ( Para 25)

2. It has been argued that the execution sale cannot be set aside at this stage when the judgment debtor has not paid any amount to satisfy the original decree or the modified decree nor he has challenged the legality of the auction sale on any permissible ground as contemplated in Order XXI CPC. However, we are not convinced with this submission made on behalf of the learned counsel for the respondents for the reason that we are not per se setting aside the execution sale as if the present is the proceedings challenging the execution of the decree by way of sale of the attached immovable properties of the judgment debtor. We are concerned herewith and we have confined ourselves to the core issue as to whether the present is a fit and suitable case for exercising power under Section 144 CPC directing restitution in favour of the judgment debtor by placing the parties in the position which they would have occupied before such execution and for this purpose the Court may make any order, as provided under Section 144 CPC. It is in exercise of this power that we have considered the aspect of execution of the decree by attachment of whole property when part of the property could have satisfied the decree. This examination was necessary to ascertain the extent of injury the judgment debtor has suffered at the time of execution of the original decree for Rs. 27,694/- opposite to the modified decree for Rs. 17,120/-. The execution of a decree by sale of the entire immovable property of the judgment debtor is not to penalise him but the same is provided to grant relief to the decree holder and to confer him the fruits of litigation. However, the right of a decree holder should never be construed to have bestowed upon him a bonanza only because he had obtained a decree for realisation of a certain amount. A decree for realisation of a sum in favour of the plaintiff should not amount to exploitation of the judgment debtor by selling his entire property.  (Para 27)

Property of female Hindu under section 14(1) of Hindu Succession Act, 1956

Case – MUKATLAL

            Versus

KAILASH CHAND (D) THROUGH LRS. AND ORS.

Two Judge Bench

Question of law involved:-

The core question of law in this case was as to the right of the plaintiff being legal heir of Hindu widow to enforce her right of succession in the unpartitioned Joint Hindu Family property by virtue of Section 14(1) of HSA by filing a suit in the Revenue Court. (Para 5 of judgment)

Held :-

Seen in the light of the ratio of the above judgments, it is clear that for establishing full ownership on the undivided joint family estate under Section 14(1) of the Succession Act the Hindu female must not only be possessed of the property but she must have acquired the property and such acquisition must be either by way of inheritance or devise, or at a partition or “in lieu of maintenance or arrears of maintenance” or by gift or be her own skill or exertion, or by purchase or by prescription. (Para 24)

The Court said that the deceased widow was never in possession of the suit property because the civil suit was filed by her claiming the relief of title as well as possession and the same was dismissed. (Para 25)