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Sitam Ram Vs. Jai Baboo - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 408 of 1972
Judge
Reported in9(1973)DLT491; 1973RLR509
ActsDelhi and Ajmer Rent Control Act, 1952 - Sections 13
AppellantSitam Ram
RespondentJai Baboo
Advocates: B.I. Singh and; B. Singh, Advs
Cases ReferredSham Sunder v. Ram Dass
Excerpt:
.....'order' as suggested applied, not in case of all the decrees passed under the act, but only in an exceptional case shows that the submission has no real substance. decree for eviction on the ground of personal need is like any other decree passed on any of the other grounds. in the latter case as the executing court it was bound by the well settled law that executing court had no right to go behind the decree......to support such an argument. decree for eviction on the ground of personal need is like any other decree passed on any of the other grounds. if the interpretation suggested is not tenable in case of decrees on other grounds there is no justification to adopt it in the case of a decree on the ground of personal need. we are, thereforee, clear that the expression 'order' in section 13(1) did not refer to an order to be passed at the stage of execution of a decree passed under this very act. (10) what then is meant by the expression 'order' in section 13 it means, to our mind, an order in execution in respect of decrees which had already been passed when the act came into force the purpose of the provision being to secure the further protections that were granted by the act to persons.....
Judgment:

S.N. Shankar, J.

(1) This revision has been referred for decision by a larger bench because of divergence of views expressed in the cases- Vas Dev v. Sohan Singh and others (1968) D.L.T. 492 and Inder Lal Sapra v. Brij Mohan (S.A.O. 300 of 1971) decided on May 24, 1972 on the question whether a judgment-debtor tenant.. during execution of the decree for eviction against him, on the ground of personal bona fide need of the landlord, can agitate the question that the need of the landlord had ceased to exist and, thereforee, the decree was inexecutable.

(2) In a suit for eviction filed by the respondent (hereafter called 'the landlord') under the Delhi and Ajmer Rent Control Act. 1952 (hereafter called 'the 1952 Act') for eviction of the appellant (hereafter called 'the tenant') on the ground that the premises were required by him bona fide, the trial court on December 21, 1955 granted a decree for eviction in his favor on the basis of a compromise. According to the compromise, the decree was executable only after February 15, 1957. After the decree, it appears that Slum Areas (Improvement and Clearance) Act, 1956 came into force so that the landlord could not apply for execution without obtaining permission of the competent authority under the Slum Act. On June 4, 1969, the landlord obtained this permission and thereafter applied for execution of the decree. On September 16, 1970, the tenant filed objections under Section 47 of the Code of Civil Procedure urging, amongst others, that the landlord had purchased another big property and he and his family was in occupation of it and his necessity had ceased to exist, and the decree was inexecutable. The landlord contested the objections. The executing court framed issues and recorded evidence. On July 14, 1972, the tenant filed an application under Order 6, rule 17 for permission to amend the objections by substituting paragraph 11 to say that the landlord had shifted into a premises which had seven rooms, a store and two latrines, two baths, kitchen and a 'barsati' and this accommodation with him was sufficient for his needs and his necessity had, thereforee, ceased to exist. By order dated October 20, 1972, the executing court dismissed this application. Hence the revision leading to the present reference.

(3) The learned executing court, in substance, held that the application for amendment was mala fide and also that the proposed amendment entailed leading of fresh evidence directed to displace the decree and the amendment, thereforee, could not be allowed.

(4) In support of the revision, Shri Bharat Inder Singh, appearing for the tenant, urged that Section 13 of the Act prohibited the court, notwithstanding anything to the contrary contained in any other law or any contract, to pass not only a 'decree' but also an 'order' for recovery of possession unless the conditions mentioned in clauses (a) to (1) of the proviso to sub-section (1) were satisfied. The word 'order' in this section in addition to 'decree', he said, meant an order in execution and the section thus precluded the court executing the decree from making an order for eviction of the tenant if the Conditions mentioned in clauses (a) to (1) of the proviso were not satisfied. Confronted with the position that this argument cannot possibly stand in case of decrees passed on the other grounds mentioned in the clauses of the proviso-as for example where a decree for eviction was passed on the ground that the tenant had sublet, assigned or otherwise parted with possession of whole or any part of the premises-the learned counsel said that this interpretation was called for only in exceptional cases and the case of a landlord whose need had ceased to exist after the decree for eviction was passed was such an exceptional case. In support of the submission he placed reliance on Inder Lal Sapra v. Brij Mohan (S.A.O. 300 of 1971) decided on May 24, 1972.

(5) We are unable to sustain this submission. Section 33 of the Act provided that any civil court in the State of Delhi which had jurisdiction to hear and decide a suit for recovery of possession of any premises shall have jurisdiction to hear and decide any case under this Act relating to such premises subject to its being otherwise competent and having pecuniary jurisdiction. Section 37 provided that subject to any rules that may be framed under the Act, the court may hold a summary inquiry into any case under this Act in terms of the section and the practice and procedure of a court of small causes shall, as far as may be, apply to such cases as if they were suits and other proceedings cognizable by a court of small Causes. Rule 4 of the Rules framed under Section 45 of the Act also provided that in deciding any question relating to procedure not specially provided by the Act or by the Rules, the court shall, as far as possible, be governed by the provisions 'contained in the Code of Civil Procedure, 1908. The court passing the decree under the Act as well as the court executing it. thus, was a civil court. Section 47 of the Code of Civil Procedure, thereforee, applied to proceedings in execution before such a court and it was precluded from going behind the decree and determine whether the grounds on which the decree was passed did or did not exist.

(6) We also find that the expressions 'decree' or 'order' in Section 13 are more or less synonymous as far as the trial of the suit under the Act is concerned. Both denote the order or decree to be passed at the time of the conclusion of proceedings under the Act. This is clear by reference to sub-section (2) of Section 13 which provides that 'no decree or order' for recovery of possession shall be passed on the ground of non-payment of rent, if, on the first day of the hearing of the suit or within such further time as the court may allow, the tenant pays in court the said arrears and costs. Similarly, subsection (5) of Section 13 which authorised the court to make an order on the tenant for the deposit of arrears of rent and future monthly rent provides that 'the landlord may withdraw the amount of money in deposit without prejudice to his claim to any decree or order for recovery of possession of the premises'. The 'decree' or 'order' envisaged in the section thus is the decree or order to be made by the court at the stage of conclusion of the proceedings under the Act pending before it.

(7) It would further be seen that the proceedings under the Act are essentially civil proceedings, governed in terms of rule 4 of the Rules framed under the Act by the provisions of the Code of Civil Procedure. They are intended to come to a final conclusion between the parties by a decree or order under the Act. There is nothing in the Act to indicate that-the Legislature intended that this final decision of the court under the Act will not be rest judicata. The rule of rest judicata is based on fundamental principles of jurisprudence that there should be an end to law suits and that no man should be vexed twice over the same cause of action. In Darvaco and others v. State of U.P. and others : [1962]1SCR574 the Supreme Court said that the binding character of judgments pronounced by courts of competent jurisdiction was itself an essential part of the rule of law and the rule of law obviously was the basis of the administration of justice on which the Constitution laid so much emphasis. On general consideration of public policy, the learned Judge said, that the rule of rest judicata should be held to be applicable also in regard to orders dealing with petitions filed under Article 32 of the Constitution. In Satyadhyan Ghosal and others v. Smt. Deorajill Debi and another : [1960]3SCR590 it was held that principles of rest judicafa applied even to the interim stages in the same litigation to the extent that a court, whether a trial court or a higher court having at an earlier stage decided a matter in one way, will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. It cannot, thereforee, be said, in the absence of a positive provision in the Act that by using the expression ''order' in Section 13, the Legislature intended that the tenant against whom a decree for eviction had already been passed under the Act on the ground of bona fide personal need was still entitled to re-open the decree in execution proceedings under the same Act.

(8) Such an interpretation, if allowed, would lead to anomalous situations and would encourage an unscrupulous tenant against whom decree for eviction has already been passed to interminably prolong the litigation and eventually deprive the landlord of the fruits of his decree. Such an intention cannot be ascribed to the Legislature and for this reason also, the interpretation suggested has to be rejected.

(9) The argument that the interpretation of the expression 'order' as suggested applied, not in case of all the decrees passed under the Act, but only in an exceptional case shows that the submission has no real substance. There is nothing in the Act to support such an argument. Decree for eviction on the ground of personal need is like any other decree passed on any of the other grounds. If the interpretation suggested is not tenable in case of decrees on other grounds there is no justification to adopt it in the case of a decree on the ground of personal need. We are, thereforee, clear that the expression 'order' in Section 13(1) did not refer to an order to be passed at the stage of execution of a decree passed under this very Act.

(10) What then is meant by the expression 'order' in Section 13 It means, to our mind, an order in execution in respect of decrees which had already been passed when the Act came into force the purpose of the provision being to secure the further protections that were granted by the Act to persons entitled to them. For example, Section 46 of the Act repealed Delhi and Ajmer-Marwara Rent Control Act (19 of 1947) but decrees for eviction passed under the 1947 Act were still operative and could be executed. The 1947 Act, proceeding on the basis of law as it then was under the Transfer of Property Act, made no provision in regard to sub-tenants and a decree for eviction against the tenant was binding on the sub-tenant also. Section 20 of the 1952 Act, however, conferred a special right on the sub-tenant to whom the premises had been lawfully sublet before the commencement of the Act i.e. when 1947 Act was in force. It provided that where the interest of a tenant of any premises was determined for any reason, any sub-tenant to whom the whole or any part of such premises had been lawfully sublet whether before or after the commencement of this Act shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions on which he would have held from the tenant if the tenancy had continued. After the passing of the Act, thereforee, a sub-tenant entitled to the declaration under this section could move the executing court under Section 47 of the Code of Civil Procedure and if he made out a case under Section 20 the executing court was precluded by reason of Section 13 of the Act from making an order of eviction against him. The expression 'order' in Section 13 thus even though covered an order in execution but it envisaged an order only in case of decrees passed before the Act came into force and not in case of decrees passed under the Act itself. In the latter case as the executing court it was bound by the well settled law that executing court had no right to go behind the decree. (See Brij Mohan Gupta v. Ulfat Rai C.R. 199 of 1967 decided on April 10, 1970).

(11) For these reasons, we are in agreement with the view taken in Vas Dev. vs. Sohan Singh and others (1968) D.L.T. 492.

(12) The same position obtains under the Delhi Rent Control Act, 1958. Section 14 of this Act also uses the expression 'order or decree' but Section 42 provides that save as provided by Section 41 (which relates to power of the Controller for recovery of fine) an order made by the Controller or an order passed in appeal under this Act shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have the power of a civil court. Rule 23 of the Delhi Rent Control Rules, 1959 (framed under 1958 Act) also provides that in deciding any question relating to the procedure not specially provided by the Act and these rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure 1908. An order for eviction passed by the Rent Controller or the Tribunal, thereforee, will be subject to the provisions of Section 47 of the Code of Civil Procedure, 1908 which precluded the executing court from going behind the order to entertain objections in regard to the merits of the controversy which culminated in the order.

(13) In Inder Lal Sapra's case (supra) the conclusion that the order for eviction under the 1958 Act could be reopened at the stage of execution was reached on the reasoning that the expression 'order' 6HCD/73-4. in Section 14 included the order directing delivery of possession to be passed by the Controller at the stage of execution. The aspect that such an order in terms of the Act was itself a decree, and the Controller while executing this order was nothing more than an executing court, was not considered. Reference in support of the conclusion was made to Sham Sunder v. Ram Dass (1951) PLR 159 where it was held that the expression 'order' in Section 9(1) of 1947 Act included the order for eviction made at the stage of execution also. But we find that the decree that was sought to be executed in Sham Sunder's case was not a decree passed under the 1947 Act but one passed before the Act came into force. In this background it was held that the expression 'order', in Section 9 of 1947 Act included an order evicting the tenant, made at the stage of execution also. This case is no authority for the proposition that a decree passed under the 1947 Act itself could also be re-opened and challenged in execution proceedings under the same Act. We are, thereforee, unable to subscribe to the view taken in S.A.O. 300 of 1971.

(14) For the aforesaid reasons, we hold that a tenant against whom a decree for eviction on the ground of personal need of the landlord was passed under the 1952 Act is not entitled to agitate at the stage of execution that the personal need of the landlord had ceased to exist and the decree, thereforee, was inexecutable.

(15) In this view of the matter, we find that the facts sought to be incorporated in the objection by amendment were not relevant at all to the real controversy between the parties at the stage of execution and, thereforee, the petitioner's application under Order 6 rule 17 was rightly dismissed by the learned Additional Rent Controller.

(16) The revision thus fails and it dismissed with costs. Counsel's fee Rs. 200.


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