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Debi Pershad Vs. Choudhari Brothers Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H357
AppellantDebi Pershad
RespondentChoudhari Brothers Ltd. and ors.
Excerpt:
.....the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of..........1947.3. section 13(1), punjab act vi [6] of 1947 provides:a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.mr. bishen narain, learned counsel for lala debi parshad defend ant-petitioner, contends that section 13(1) impliedly bars the institution of a suit for the eviction of a tenant in possession of a building or rented land. mr. tek chand, learned counsel for the plaintiffs, however, urges that section 13(1) merely bars execution of a decree passed in a suit for the eviction of a tenant in possession of a building or rented land before or after the.....
Judgment:
ORDER

Harnam Singh, J.

1. Messrs. Chaudhari Brothers, Limited, of Narwana instituted a suit against Shri Debi Parshad for possession of the Imperial Flour Mills, revovery of Rs. 42,500 on account of arrears of rent for the period ending on 30th September 1947, Rs. 3600 on account of interest on this sum and Rs. 60,750 on account of mesne profits for the period between 1st October 1947 to 23rd April 1948. In para. 11B of the plaint plaintiffs claim mesne profits from the date of the suit till the date of the delivery of possession of the Mills.

2. At the trial a preliminary objection was raised by the defendants that the suit for possession of the Imperial Flour Mills was in pith and substance a suit for the eviction of the defendant and was barred by the provisions of Section 13, Punjab Act VI [6] of 1947. Now, it is conceded that the suit for recovery of rent and mesne profits is not barred by the provisions of Section 13, Punjab Act VI [6] of 1947. What is contended is that the suit for possession of the Imperial Flour Mills comes within Section 13(1) of Punjab Act VI [6] of 1947.

3. Section 13(1), Punjab Act VI [6] of 1947 provides:

A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.

Mr. Bishen Narain, learned Counsel for Lala Debi Parshad defend ant-petitioner, contends that Section 13(1) impliedly bars the institution of a suit for the eviction of a tenant in possession of a building or rented land. Mr. Tek Chand, learned Counsel for the plaintiffs, however, urges that Section 13(1) merely bars execution of a decree passed in a suit for the eviction of a tenant in possession of a building or rented land before or after the commencement of Punjab Act VI [6] of 1917 but does not prohibit institution of a suit for the eviction of a tenant in possession of a building or rented land.

4. Mr. Bishen Narain urges that the scheme of the Acts lends support to the argument raised by him that the institution of suits for the eviction of tenants are impliedly barred by Section 13(1), Punjab Act VI [6] of 1947. He has referred me to Sections 13(2), 14, 15, 16 and 17 of the Act and argues that a complete procedure has been prescribed under the Act for the eviction of tenants in possession of a building or rented land; that being so, he maintains that a parallel procedure could not have been intended by the Legislature.

5. Now, Section 13(1) clearly contemplates decrees for the eviction of tenants in possession of a building or rented land being passed subsequent to 16th April 1947 when the Act came into force.

6. Now, if a decree can be passed in a suit for the eviction of a tenant in possession of a building or rented land after the commencement of Act VI [6] of 1947, a suit for the eviction of any such tenant is not prohibited by the Act.

7. Again, I am fortified in my view set out in the preceding paragraph, for I find that wherever the Legislature intended to prohibit the institution of a suit it has in express words provided for such prohibition. Reference in this connection may be made to Section 92(2), Civil P.C., which provides:

Save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provision of that sub-section.

Again, Section 270(1), Government of India Act, 1935, reads:

No proceedings civil or criminal shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown in India or Burma before the relevant date, except with the consent, in the case of a person who was employed in connection with the afiairs of the Government of India or the afiairs of Burma, of the Governor-General in his discretion, and in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province in his discretion.

Again, Section 214(1) of Act XXXK [39] of 1925 enacts:

No Court shall,

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or....

It would appear from the provisions of Section 92(2), Civil P.C., Section 270(1), Government of India Act, 1935, and Section 214 (1) of Act XXXIX [39] of 1928 that where the Legislature has intended to prohibit the institution of a suit the Legislature has made an express provision in that behalf.

8. The question, however, remains whether there is an implied prohibition to the institution of a suit for the eviction of a tenant in possession of a building or rented land.

9. As I read the Section 1 find that there is no such implied prohibition in Section 13(1) of the Act. On the other hand, Section 13(1) contemplates decree being passed in a suit for the eviction of a tenant in possession of a building or rented land subsequent to 15th April 1947 when the Punjab Act vi [6] of 1947 same into force.

10. Mr. Bishen Narain concedes that Section 13(1) contemplates decrees being passed after the commencement of the Act in suits for the eviction of tenants in possession of building or rented land. He urges that decrees which are contemplated within Section 13(1) are decrees which may be passed after the commencement of this act in suits which were pending on the date when the act came into force. I, however, Bee no justification to limit the scope of Section 13(1) to decrees being passed in suits pending at the time when the Act came into force.

11. Mr. Bishen Narain next contends that it would be anomalous if after the passing of a decree in a suit for the eviction of a tenant in possession of a building or rented land the Collector was to disregard the decree passed, by a civil Court. He urges that such a situation is not contemplated. The language used in Section 13(1), however, shows that a decree-holder in a case where the decree was passed before the Act came into force and a decree-holder in a case where the decree was passed subsequent to the passing of the Act have to apply to the Collector for a direction in the matter of the eviction of the tenant. That being so, I see no substance in this argument.

12. For the foregoing reasons, the petition for revision fails and is dismissed with costs.

13. Lest there be some confusion, I may make it clear, that in the proceedings before me counsel for the plaintiff-respondent has based himself on the interpretation of Section 13 (1) without going into the question whether the Imperial Flour Mills and the appurtenant property falls within Section 2(a), Punjab Act VI [6] of 1947. The question whether the leased property falls within Section 2(a), Punjab Act of 1947, is left open for decision by the appropriate authority.

14. Rai Bahadur Bishen Narain, Advocate of Delhi, counsel for defendant 1, informs me that the case is fixed in the trial Court for 50th April 1949. Parties are directed to appear in the trial Court on that date.


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