S.K. Dubey, J.
1. The appellant-landlord has come up in this Second Appeal against an order dt. 21-1-88 passed by the District Judge, Dhar in Civil Appeal No. 1-A/78, under Section 18(3) of the M, P. Accommodation Control Act, 1961 (for short 'the Act').
2. The brief facts leading to this appeal are thus: The appellant filed a suit in the year 1975 for ejectment in respect of the suit premises situated at house No. 271, Pipli Bazar, Dhar on the ground of Section 12(1)(h) and on-other grounds. The suit was decreed under Section 12(1)(h) of the Act as the accommodation was required bona fide by the landlord for the purpose of rebuilding or making substantial additions or alterations and in the opinion of the decreeing Court, such rebuilding or additions or alterations could not be carried out without the accommodation being vacant. Against this, the tenant-respondent filed an appeal, which was dismissed. A second appeal was preferred, wherein the decree of the Courts below was confirmed by the High Court with a direction to the tenant to give vacant possession on or before 30-6-85 and the landlord was to commence reconstruction on or before 30-6/ 85 and after completion of the same to redeliver the possession, within one month from the date of the completion of the construction to the tenant. The tenant, in compliance of the judgment and decree of the High Court in Second Appeal, handed over the possession to the landlord, who was employed in the Education Department as teacher and then at that time, retired from his services. But on his retirement, the landlord in the High Court did not claim the eviction Under Section 12(1)(e) of the Act, i.e. bona fide requirement of the premises for residence by virtue of the subsequent events. After the delivery of the possession, instead of commencing the work, the landlord shifted from Indore to Dhar and occupied the premises and 'started living therein. The landlord in view of the decree passed under Section 12(1)(h) of the Act failed to commence the work of reconstruction.
3. When the landlord did not commence the work for sufficiently long time, the tenant respondent, filed an application under Section 18(3) of the Act on 30-4-86 for restoration and/or redelivery of the possession of the suit premises. The landlord-appellant contested the application mainly on two grounds that when originally the suit was filed in the year 1975 for reconstruction, the cost of construction estimated was only Rs. 5,000/- but as the possession was delivered by the tenant in the year 1985 after the decree of the High Court in Second Appeal, the cost of construction has gone too high the appellant-landlord, a poor teacher, hence, could not afford to reconstruct the premises because of financial stringency. The other reason assigned was that he spent most of the amount in the treatment of his disabled daughter. As after the retirement, the appellant had to vacate the prmises at Indore and had to come to his permanent abode at Dhar, he occupied the premises. According to the appellant-landlord, the cause assigned for not commencing the work of repairs is bona fide and sufficient which warrants not to order the delivery of possession to the tenant but in default, compensation only would be sufficient On the basis of the application, replies and on the facts admitted by the landlord himself, the trial Court passed an order against the landlord, directing the landlord to deliver the possession of the suit accommodation to the tenant Against this order dt. 16-4-1987 in Misc. Civil Case No. 10/86, passed by Shri Yakub Ali, Civil Judge, Class-I, Dhar, an appeal was preferred before the District Judge, Dhar. In the appeal, besides the grounds raised in the reply by the landlord, other submission was made that the trial Court passed the order of redelivery of possession without holding any enquiry and further the tenant has already acquired vacant possession of the suit accommodation suitable for his residence in the town of Dhar, which has been purchased by him in the name of his son, as such on this ground also the application Under Section 18(3) be dismissed.
4. The lower appellate Court after considering all the material on record confirmed the order of delivery of possession passed Under Section 18(3) of the Act. Aggrieved of this order, the appellant-landlord has filed this Second Appeal, which was admitted by this Court on 29-6-1988, on the following substantial question of law :--
'1. Whether in the given circumstances of the case, the Courts below have acted illegally in giving direction to the appellant to hand over vacant possession of the house to the respondent?
2. Whether the Courts below have acted illegally in not giving opportunity to the appellants to lead evidence to prove his case which has resulted into miscarriage of justice?
3. Whether the Courts below have committed an illegality in not awarding compensation to the respondents instead of giving a direction for giving vacant possession of house to the respondents?'
5. Shri A. H. Khan, learned counsel for the appellant contended before this Court that in the background and circumstances stated in the application and for the fact that the tenant has already acquired possession of vacant accommodation for his residence and he is residing therein, the application Under Section 18(3) of the Act ought to have been dismissed. In any case on equitable grounds, the Courts ought to have exercised the discretion for payment of compensation to the tenant instead of directing redelivery of the accommodationj. Lastly, Shri Khan contended that the order on the application Under Section 18(3) of the Act could not have been passed without holding an enquiry. In support of his contentions, he placed reliance on a decision in Shrikrishnadas v. Radhabai, 1969 Jab LJ 552.
6. Shri Y.I. Mehta, learned counsel for the respondents-tenant contended that under Section 18(3) of the Act, when a tenant elects to vacate the premises for rebuilding under the decree of the Court and after the rebuilding is completed, the option vests with the tenant either to occupy the premises or ask for compensation. When a decree Under Section 12(1)(h) is passed, the Court merely suspends the tenancy of a tenant though eviction is ordered. After the possession is delivered and after the construction is not commenced and if commenced and/or completed in that case, it is an absolute discretion in the tenant to elect either for reoccupying the premises or for compensation. The Court has to pass an order according to the option exercised by the tenant and it cannot pass any other order even if the landlord is hard-pressed or the grounds under Section 12(1)(e) or 12(1)(i) of the Act have become available to the landlord. It is up to the landlord to take action in accordance with law but not in the proceedings under Section 18(3) of the Act. Learned counsel placed reliance on a recent report of this Court in Radha Kishan v. Bhagwandas, 1988 MPRCJ 123 : (AIR 1988 Madh Pra 241). The learned counsel also contended that when the trial Court exercised its discretion, which does not appear to be capricious or unreasonable, it cannot be interfered in Second Appeal.
6A. After hearing the learned counsel, I am of the opinion that this appeal has no merit and deserves to be dismissed. At the first hand I was impressed with the submission of the learned counsel for the appellant that the order has been passed without holding any enquiry and the case deserves to be remitted back. But after going through the application under Section 18(3) of the Act and its reply, wherein the landlord-appellant has given reasons for not commencing the work of rebuilding and for occupying the premises and for not redelivering the possession to the tenant. In failure to rebuild the accommodation, the reasons assigned by the landlord on the face of it even accepted do not require any enquiry or evidence. After accepting the said submission, the Courts have passed the order. The landlord was knowing full well when the Second Appeal was pending that he has retired from service and the cost of construction has gone very high. Hence, he was having an opportunity to draw the attention of this. Court, and if possible to apply for an amendment for securing a decree Under Section 12(1)(e) of the Act, i.e. after a bonding the grounds of rebuilding or reconstruction. At that juncture, the appellate Court could have considered the bona fides of the appellant. But the appellant knowingly insisted for a decree under Section 12(1)(h) of the Act and after taking the possession of the accommodation from the tenant did not commence the work of construction or reconstruction or rebuilding or repairs but started living therein, it cannot be said that the equity is in favour of the landlord. The object of the Act is to protect the 'existing possession' of law abiding tenants (becoming 'statutory tenants under such Act') by interdicting their eviction by unscrupulous landlords. The jurisdiction of the Court in passing an order for eviction from any accommodation of a tenant is, therefore, strictly circumscribed by exhaustively detailing under different clauses of Sub-section (1) of Section 12, the grounds on which only the suit for eviction of tenant can be filed. Therefore, the Courts' jurisdiction to pass a decree depends upon the fact when the lis is started for eviction and the tenant is made to vacate on any such decree so passed by the Court. See Lachhobai Rathore v. Registered Shri Murti God Madan Mohanji Maharaj, 1987 MPRCJ 23 and Radha Kishan's case (AIR 1988 Madh Pra 241) (supra). Therefore, even some new sets of things or events have crept in, i.e. bona fide and/or genuine requirement of the landlord, financial stringency for not commencing the repairs or tenant having acquired the premises for his suitable accommodation in the city, have no relevance and the Court passing an order of re-entry under Section 18(3) of the Act, cannot look into such matters. It is the duty of the Court to ensure that a landlord having obtained a decree under Section 12(1)(h) does not violate the statutory condition on any grounds or on equity and if it is done, then the object of the Act and Section 18(3) of the Act will be frustrated. This Court in Radha Kishan's case (supra) has dealt with the Object of Section 18(3) in details and Paras 10 and 11 for purposes of this case are material, which read as under : --
'10-- In this context, it is necessary also to stress once again the source, origin and nature of tenant's entitlement to be restored to possession under Sub-section (3) of Section 18. As I have earlier said, despite eviction being decreed under Section 12(1)(h), the decree has to conform to Section 18(1) by which the tenancy would merely remain suspended temporarily under the decree and on tenant's making application to be put back in possession, the tenancy cannot be terminated by the Executing Court passing an order for payment of compensation to the tenant. Indeed, the suspension statutorily terminates when tenant makes an application under Sub-section (3) because tenant's right to 're-entry' or resumption of tenancies is contemplated in absolute terms in Sub-section (3) by vesting in him the right to make an application thereunder. Indeed, the amplitude of that right is only circumscribed by the single condition that such application must be made 'within such time as may be prescribed'. In any other manner, the right of the tenant to terminate the suspension and or to resume the tenancy, by the application, cannot be defeated. This I say notwithstanding use of the words 'the Court may' because the option which is given to the tenant under Sub-section (1) is an indefeasible option inasmuch as Section 12(1)(h) merely contemplated, along with Sub-section (7), a decree being passed, but that must be in terms of Section 18(1). Ex hypothesi, Court's jurisdiction to grant compensation will be similarly conditioned and controlled by tenant's option made in the application, or otherwise made before the application is disposed of. The tenant may express his option in case of a 'new' accommodation to be put in occupation even of a 'part' thereof. He may not even opt for the 'new' accommodation offered to him and demand payment of compensation for deprivation of the right to be restored to possession in the 'new' accommodation when it is substantially altered and is unsuitable for him. There may be cases when the tenant may ask for compensation, instead of being restored to possession of the unbuilt and unrepaired accommodation, when the work thereof has not at all commenced.
11 -- On the other hand, there would be no question at all for the Court, according to me, to pass any order for compensation if the tenant by his application contemplated under Sub-section (3) exercise that option which had become part of the decree rendered under Section 18(1). Any other view would render the provision of Section 18(1) otiose inasmuch thereunder the Court is mandated to ask the tenant to make his election by requiring that the fact of election shall be recorded in the decree and specifying the date by which possession is to be delivered by the tenant to enable the landlord to commence work of repairs or building or rebuilding, as the case may be. If the right of the tenant to make election under Section 18(1) has to be given effect to carry out the legislative intent of Section 18(1), then that right cannot, in any manner, be defeated by an order of compensation passed by the Court under Sub-section (3). By thus construing the provisions of different parts of Section 18, not only both provisions are harmonised but their co-existence with the parent provision of Sections 12(1)(h) and 12(7) is appropriately ensured. A tenant could be made to vacate the accommodation only after the Court was 'satisfied' that landlord shall undertake the construction of proposed reconstruction and the prayer for eviction was not a subterfuge. The decree, as I have earlier said, which may be passed under Section 12(1)(h) is doubly conditioned by the requirements contemplated not only thereunder, but also under Sub-section (7) and Section 18(1). Obviously consideration of the maxim ut res magis valeat quam pereat assumes paramount importance in this exercise. The Court is duty bound not only to effectuate fully the legislative intent but the relevant statutory provisions must be construed reasonably and sensibly in such manner that the intent is not defeated and the object of the enactment is properly served. (See D. Sanjeevaiah (AIR 1967 SC 1211) Amarnath (AIR 1972 SC 1548). Krishna Gopal (AIR 1974 SC 209)). It is the duty of the Court, in my opinion, to ensure that no unscrupulous landlord can play fraud upon the Court and obtain a decree under Section 12(1)(h) only to violate subsequently the statutory condition thereof. If that is allowed to happen then the object of the Act would be frustrated, paving way for rent-racking.
Therefore, in view of the fact that even because of some financial stringency when the landlord ,,pould commence his reconstruction and after retirement he has occupied the accommodation, as the tenant has exercised his option for re-entry, the Court has no option but to direct redelivery of possession. No question arises of payment of compensation as the tenant has not chosen to opt for compensation instead of re-entry. Therefore, the Courts below were right, on the application of the tenant under Section 18(3) of the Act, to order against the landlord to restore the accommodation to tenant's possession by specifying it.
7. Admittedly, it is not the case that the premises are not inhabitable, which would be evident from the fact that the landlord has occupied the accommodation for residing therein and is residing since 1986. The enquiry would have been necessary if the building would have been demolished or would have been remained in a dilapidated condition so that the same could not have been used for the purposes of residence. Hence, in the circumstances of the case, I am of the opinion that the discretion exercised by the tenant and the order passed by the Courts below, which being discretionary is not liable to be interfered in Second Appeal. The appeal does not involve any question of law much less any substantial question of law, hence deserves to be dismissed.
8. In the result, the appeal is dismissed with costs and it is ordered that the appellant-landlord shall hand over the possession of the accommodation to the respondent-tenant by 31st March, 1989. Counsel's fees Rs. 250/-if already certified.