(1) The present Execution Second Appeal has arisen in the following circumstances.
(2) Paras Ram, decree-holder, respondent in this Court, secured a decree for ejectment of Sardha Ram from his shop situated at Karnal. This decree was confirmed right up to this Court; Sardha Ram v. Paras Ram, Second Appeal No. 736 of 1960, preferred by Sardha Ram, having been dismissed by this Court on 12th December 1960.
(3) The judgment-debtor filed an application in the executing Court under S.47, Civil Procedure Code, read with S.13(1) of the East Punjab Rent Restriction Act 1949, and S. 29 of the Displaced Persons (Compensation and Rehabilitation) Act. No.44 of 1954. It was stated in this application that the decree-holder could not eject the judgment-debtor in execution of the decree because the tenant could not be ejected otherwise than by an order passed by the Rent Controller under S.13 of the Rent Restriction Act, mentioned above, and that the civil Court had no jurisdiction to eject the judgment-debtor in execution of its decree. This plea has been rejected by both the Courts below principally on the ground that the ejectment decree passed by the Civil has already been upheld by this Court in Second Appeal No. 736 of 1960. It may be mentioned at this stage that in Second Appeal No. 736 of 1960, it was contended on behalf of the judgment-debtor that the because the right of the landlord to eject the tenant and the liability of the latter to be ejected from the shop in question was exclusively determinable under S. 13 of the Punjab Rent Restriction act. This Court, while affirming the decrees of the two Courts below, came to the conclusion that it was reasonable to assume that the Parliament placed the persons protected by S. 29 of the Central Act No. 44 of 1954 in a different and distinct category from the tenants whose case are governed by the Punjab Rent Restriction Act and has afforded them special protection uniformally throughout the Republic. The Courts below in the present execution proceedings have thus determined the dispute by adopting the view that S. 13 is inapplicable to the case in hand by virtue of the decision in Second Appeal No. 736 of 1960.
(4) On behalf of the appellant, it has been contended by his learned counsel that the decision in Second Appeal No. 736 of 1960, has not resolved the question whether in execution proceedings the Court can eject a tenant except in accordance with the provisions of S.13 of the Punjab Rent Restriction Act No. 3 of 1949. It is contended that the only question, which was before the Court diction of the civil Court to entertain a suit for ejectment of the judgment-debtor. In so far as the question of eviction in execution of a decree for ejectment is concerned, it is S.13, which alone determines the rights and liabilities of the parties. In this connection reliance has been placed on Smt. Padmawati v. Mehta Faqir Chand, Letters Patent Appeal No. 285 of 1959, in which a Division Bench of this Court (Meha Singh and Gosain JJ.) while construing notification No. 1120-LG-(A)-51/11/- 411 issued by the State Government on 8th March 1951, exempting under S. 3 of the Rent Restriction Act all buildings constructed during the years 1951 and 1952 from the provisions of the said Act for a period of five years, observed that after the expiry of the period of five years the provisions of Section 13 of the Rent Restriction Act become immediately applicable, though they did not bar obtaining of a decree of eviction, the excitability of such a decree being exempted expressly by the above provisions. The appellant in that case was held not no possess any vested right beyond the exemption granted for a certain limited period. Counsel has also referred me to Sham Sundar v. Ram Das, a Full Bench decision of this Court reported as (1951) 53 Pun LR 159: (AIR 1951 Punj 52)(FB). There S. 9(1) of the Delhi and Ajmer-Merwara Rent Control Act 1947, was held to apply to decrees passed before the Act cannot into force, and the section was held to prohibit all Courts from making any order evicting any tenant in execution of decrees passed before the Act. It is contended that the scope of S.13 of the Punjab Act is similar to the scope of s. 9 of the Delhi Act. Reliance has also been placed on Korach Punnen v. Parameswara Kurup Vasudeva Kurup, (S) AIR 1956 Trav-Co 1 (FB) where a Full bench of that Court held that where a tenant is sought to be evicted in execution of a decree on the ground that he denies the title of the landlord, the Order that will apply to the case is the order of 1950, which was in force when the tenants were sought to be evicted and not Order of 1122 that was in force when the suit was instituted. The date of the institution of the suit is accordingly not material for the purposes of that question. It was further observed that notwithstanding anything contained in the Rent Control Order the Court could pass a decree for eviction and the question whether the tenant would be entitled to the benefit under the Order would arise only when he is sought to be evicted in pursuance of the decree.
(5) On behalf of the respondents, Shri Sachar has submitted that S.13 of the Rent Restriction Act is not applicable to the present case and that it is S.29 alone, which, as held in the judgment of this Court in Second Appeal No. 736 of 1960, governs the rights of the parties. He has stated that in any case the sale-certificate was issued with respect to the property in question on 3rd of July, 1959, and that according to the decision of the Supreme Court in Bombay Salt and Chemical Industries v. L. J. Johnson, AIR 1958 SC 289, there could be no valid completed sale of the property prior to the date of the sale-certificate. This argument has been advanced in the alternative for the contention that in any case for a period of two years at least during which S.29 of Act 44 of 1954 gives a protection to the person in possession of the immovable property transferred under the Act section 13 of the Punjab Rent Restriction Act is completely excluded. This argument has been sought to be met by the appellant by showing to me a copy of the certificate of sale (non on the record) in which it is mentioned that Shri Paras Ram was declared the purchaser of the property No. C 681 in Karnal with effect from the 25th day of June 1958. According to the counsel, the period of two years mentioned in S. 29 of the Displaced Persons (Compensation and Rehabilitation) Act should be deemed to have begum from the 25th of June, 1958m and expired on 25th June 1960. As against this Shri Sachar has very forcefully contended that if by June, 1960, according to the appellant the operation of S. 29 had actually come to an end and the case, from then onwards, covered by S.13 of the Act, then this plea should have been taken in the proceedings in the suit and having not been so taken, the judgment-debtor appellant should not be permitted to raise it in execution proceedings. In this connection, it is relevant to state that in June 1960, the proceedings in the suit were at the stage of second appeal in this Court, which had been admitted by the learned Single Judge in motion in May, 1960. It has been contended that the doctrine of constructive res judicata also applies to execution proceedings, therefore, a plea, which might and ought to have been raised during the course of the trial and has not been so raised, cannot be permitted during the execution proceedings.
(6) This abstract proposition is of course, indisputable and I need not refer to the two decisions, one by the Supreme Court and the other by the Privy Council, cited by the learned counsel. The question, however is: does this principle apply to the present case? Ad already noticed, on the 25th of June, 1960, the proceedings in the suit were at the stage of second appeal in this Court. There was thus no question of raising the present plea in defence in the written statement. The counsel, however, contends that a pure question of law can always be raised even at the appellate stage. In my opinion, no party is entitled as of right to raise a new point even of law for the first time on appeal, the matter being in the discretion of the Court whether or not to allow it on the facts and circumstances of each case, though the Courts, as a general rule to shorten litigation and promote the cause of justice.
(7) But this apart from the copy of the certificate shown to me it appears that the sale-certificate was prepared in June 1959 and actually issued on 3rd July, 1959; as to when exactly Sardha Ram came to know of it is not clear on the existing record. It is, therefore not possible to hold with certainly that Sardha Ram was aware of the facts, which according to the respondent, gave him a right to raised the law new point on second appeal assuming that he had a right to do so. In order to attract the provisions of explanation (IV) to S. 11 Civil Procedure Code, the present appellant not only might but also ought to have made the matter of the expiry of two years a ground of defence. In other words, not only should the appellant have been competent to raise the point in defence but it should also have been incumbent on him to so raise it. It is, therefore, a question for consideration whether it can be said that a matter which the appellate Court in its discretion may or may not have permitted to be raised in the earlier proceedings ought to have been raised by the present appellant. The question thus posed has not been fully canvassed at the Bar but as at present advised I am disinclined to hold that it can be so said. I am therefore, not in a position to hold that it is permissible to apply the doctrine of constructive res judicata to the facts and circumstances of this case and thus it is not possible on this ground to shut out the judgment-debtor from raising the question.
The counsel for the respondent also urged and he did so with considerable vehemence-that the judgment-debtor should have placed the whole material on the record in the Court of first instance, and should also have pressed in his argument that after the expiry of two years from the date of the transfer, the protection given by S.29 of the Displaced Persons (Compensation and Rehabilitation) Act, read with Rule 121 framed under S. 40 of the Act had come to an end and that he was entitled to plead S. 13 of the Punjab Rent Restriction Act. Having not done so, it is emphasised, that, the appellant should not be permitted at this stage to raise this point or even to rely on the copy of the sale-certificate which alone suggests that Paras Ram was declared to be a purchaser with effect from 25th June, 1958. This contention prima facie does not appear to be wholly unjustified.
(8) Having considered the rival contentions raised at the Bar, I think the first question which calls for determination is the scope and effect of S.29 of the Displaced Persons (Compensation and Rehabilitation) Act read with Rule 121 framed under S. 40. Section 29 is in the following terms:
'29. Special protection from ejectment to certain classes of persons:
(1) Where any person to whom the provisions of this section apply, is in lawful possession of any immovable property of the class notified under sub-section (2), which is transferred to another person under the provisions of this Act, then, notwithstanding anything contained in any other law, such person shall without prejudice to any other right which he may have in the property, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer:
Provided that notwithstanding anything contained in any such terms and conditions no such person shall be liable to be ejected from the property during such period not exceeding two years as may be prescribed in respect of that class of property, except on any of the following grounds, namely;--
(a) that he has neither paid nor tendered the whole amount of arrears of rent due after the date of the transfer within one month of the date on which a notice of demand has been served on him by the transferee in the manner provided in S. 106 of the Transfer of Property Act 1882 (IV of 1882):
(b) that he has, without obtaining the consent of the transferee in writing-
(I) sublet or otherwise parted with the possession of the whole or any part of the property, or
(ii) used the property for a purpose other than the purpose for which he was using it immediately before the transfer;
(c) that he has committed any act which is destructive of or permanently injurious to, the property.
(2) The Central Government may, from time to time by notification in the Official Gazette, specify the class of persons to whom, and the class of immovable property in the compensation pool, other than agricultural land in respect of which the provisions of this section shall apply and in issuing any such notification the Central Government shall have regard to the following matters, that is to say,---
(a) the length of the period for which any such persons may have been in lawful possession of the property:
(b) the difficulty of obtaining alternative accommodation;
(c) the availability of any other suitable residential accommodation for the use of the transferee; and
(d) such other matters as may be prescribed':
(9) Rule 121 lays down as follows.
'121. Protection from ejectment of person referred to in S. 20 of the Act.-
The period during which persons to whom the provisions of S. 9 of the Act apply, shall not be liable to be ejected from any immovable property other than agricultural land in their lawful possession shall be two years in all cases'.
It is clear that the persons, who is in lawful possession of any immovable property of the class notified in S.29(2), does not seem to possess the status of a tenant vis-a-vis the property in his possession,, because the legislature has chosen not to so describe it in sub-section(1), and after transfer he is merely to be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer subject to the further proviso that notwithstanding anything contained in any such terms and conditions such a person is not liable to be ejected from the property during a period of two years except on the grounds mentioned therein.
(10) Now what is the purpose of this statutory fiction and between what parties has this fictional relationship been created? After ascertaining this, full effect has to be given to the legal fiction which must be carried to its logical conclusion, but always subject to the restrictions contained in the provision creating such fiction. In other words, the person has to be specially protected from ejectment for a period of two years and it is for this purpose that he has to be deemed to be a tenant on the existing terms and conditions; the special protection from ejectment has further been circumscribed as is clear from the three grounds contained in the proviso.
In S. 29(2) it is obvious that the Central Government in determining the applicability of the section has to have regard to the length of the period of possession of the person in question, the difficulty in obtaining an alternative accommodation and the availability of any other residential accommodation for the use of the transferee and such other matters as may be prescribed. This does seem to suggest that a period of two years exemption from eviction was fixed in the interest of the person in possession rather than that of the purchaser. This in my view, further indicates that the draftsman did not consider that the person in possession would as a full-fledged tenant be entitled to the greater protection available under the local rent legislation, for, if those provisions had been intended to be applicable to the case then the special and limited protection intended to be given to the person in possession would really amount to restricting his rights, and conferring wider powers of ejectment on the transferee landlord than would be available to him under the rent control legislation. The whole scheme of the section thus appears to me to suggest that the rights and liabilities of the transferee and of the person in possession were not intended to be governed by S.13 of the Rent Restriction Act at all. As a matter of fact what was intended was that slightly more extensive protection was sought to be given to the person in possession than was available to him by the terms and conditions on which he held the property from the Rehabilitation Department or the Central Government as the case may be, and by the general law of the land as contained in the Transfer of Property Ltd.
In this view of the matter as at present advised, I would be inclined to take the view that the property sold under the Displaced Persons (Compensation and Rehabilitation) Act and covered by the provisions of section 29 was not intended to be controlled by Section 13 of Punjab Rent Restriction Act so far as the matter of eviction is concerned.
(11) Turning for a moment to the East Punjab Rent Restriction Act it is clear from the Preamble that this statute was apparently enacted to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom. It prima facie suggests that the enactment is intended to restrict the eviction of tenants from those premises of which the increase of rent has been sought to be restricted.
(12) It is necessary here to say a word or two about the scope and effect of the preamble of a statute. The preamble can, no doubt neither cut down or restrict nor extend or enlarge the enacting part, when the language, scope and object of such part are clear and unambiguous, the preamble not being an essential or integral part of an Act but at the same time the preamble, where it exists has always been described to open the mind of the makers of the law and it constitutes a good means of finding out the meaning of the statute, as if it were a key to the understanding of it, professing as the preamble usually does to state the general object and intention of the Legislature amble may thus be legitimately consulted in order to keep the true effect of the enactment within its intended scope and object, provided of course there is a reasonable doubt about its precise and true scope and effect.
(13) Now, according to section 29 of the Displaced Persons (Compensation and Rehabilitation) Act and rule 121 made under the Act, the terms and conditions as to payment of rent, on which the person in lawful possession had been holding the property, have expressly been retained by the deeming provision which, in explicit terms over-ride all other laws. Carrying this fiction to its logical conclusion I cannot but hold that the provisions of the Punjab Rent Restriction Act are not intended by the Parliament to control the matter of rent of and eviction from the premises in question.
(14) In the view that I have taken of the scope and effect of Section 29(1) of this section is intended to begin and also if that period happens to expire before the judgment-debtor is actually dispossessed on account of his having unduly prolonged the proceedings for his dispossession by raising various objections, then, can he be heard to say that he is not liable to be dispossessed in pursuance of a lawful order because of the expiry of the said period. The argument that on the grant of a sale-certificate his title may relate back to the date of the auction did not strike to the Supreme Court to be obvious in Bombay Salt and Chemical Industries' case, AIR 1958 SC 289. It is, however contended that in the case in hand there is conclusive evidence in the sale certificate itself that the title was to relate back to 25th June 1958, with the result that the Supreme Court decision can by no means be of assistance in the determination of the point which arises here. These contentions undoubtedly pose interesting and by no means easy questions, but as I have already observed in the view that I have taken they do not call for solution. The rulings cited by the appellant are on this view equally unavailing.
(15) In the light of the foregoing discussion this appeal fails and is hereby dismissed with costs.
(16) Appeal dismissed.