T.U. Mehta, J.
1. The appellants above named have preferred this appeal against the decision given by the court of the Senior Sub-Judge, Sirmur District in suit No. 137/1 of 1970 on his file dismissing the appellants' suit for possession of the suit premises and eviction of the respondent-defendants therefrom. The suit is with reference to the premises known as old Khalsa Hotel situated on the Mall, Solan bearing Municipal Nos 71/2 and 71/3. The respondents herein are the heirs and legal representatives of late Sardar Kartar Singh who was occupying the suit premises having initially taken them on lease.
2. The record of the case shows that the deceased Kartar Singh originally executed rent note Ex. P-15 in favour of one Lala Ram Chander, father of the plaintiffs, on 19-10-1935. That rent note was for a fixed period of two years. Reference to the rent note shows that Kartar Singh has executed this rent note as proprietor of 'Pratap Khalsa Hotel' i. e. in his personal capacity. The record further reveals that even after the expiry of the above said period of two years the said Kartar Singh continued to occupy these premises as tenant. On 27-7-1947 he is found to have executed another rent note as found at Ex. P-16 in favour of the present appellants Trilok Chand and Prem Chand, sons of said Ram Chander. Even this rent note is executed by Kartar Singh in his personal capacity as the proprietor of Pratap Khalsa Hotel. This rent note was for a fixed period of one year i. e. up to the end of March 1948. Even after the expiry of the period stipulated by this rent note Kartar Singh continued to occupy the premises. Then on 11-6-1954 he executed yet another rent note in favour of the plaintiffs as found at Ex, P-17. Even this rent note was for a fixed period of one year, and the lease in terms of this rent note expired on 31-3-1965.
3. Evidence further reveals that thereafter on 21-11-1955 said Kartar Singh filed a petition under Section 4 of the Punjab Urban Rent Restriction Act, 1949 as applied to Himachal Pradesh in the Court of the Rent Controller, Solan for the fixation of the fair rent of the premises as per copy found at Ex. P-18. This application was filed against Smt. Kundan Devi, the widow of Lala Ram Chandra, the original landlord, Evidence reveals that before that on 22-8-1955 said Kundan Devi had filed an application in the court of the Rent Controller, Solan for eviction of Kartar Singh from the suit premises on the ground that the premises were required for reconstruction and remodelling and that the applicant wanted to start her own business in these premises after the reconstruction. A copy of this application is found at Ex. P-19 Reply filed by Kartar Singh in that application for eviction is found in the record of the case at Ex P-20 which is dated 4-10-1955.
4. The above referred proceedings before the Rent Controller are found to have been taken for and against, Kartar Singh in his individual capacity as the proprietor of Pratap Khalsa Hotel. It is further revealed from the record that all these proceedings were ultimately compromised between the parties as a result of which a fresh rent deed was executed between the parties with regard to the suit premises on 30-12-1955, This rent deed is not produced by the parties in the record of the case, but the existence thereof is revealed from the document found at Ex. DW 4/C which is dated 3-3-1956. Reference to this document shows that it was with regard to the agreement between the parties about the opening of a door between the suit premises and the adjoining premises which also belong to Kundan Devi and in which some partnership business between the parties was started. The document further reveals that even the fresh rent note dated 30-12-1966 was for a fixed period of tenancy.
5. Kartar Singh has admittedly died on 8-2-1968. The present dispute started between the parties after the death of Kartar Singh.
6. The record of the case reveals that on 26-7-1968 the plaintiffs addressed an eviction notice to defendants Nos. 1 and 2, Arjun Singh and Amarjit Singh who ere sons of deceased Kartar Singh as found at Ex. P-22. Therein the eviction was demanded on the footing that after the death of Kartar Singh, who was a statutory tenant, these two defendants had no right to occupy the premises and were, therefore, in the position of trespassers. These two defendants were asked to vacate the premises on or before 31-8-1968. Reply to this notice was given by defendants Nos. 1 and 2 on 2-9-1968 as found at Ex. P-,24. Therein they raised the plea that Kartar Singh was the karta of the joint Hindu family of the defendants and the business in the suit premises was carried on as joint Hindu family business, and hence the defendants as members of the said joint Hindu family were as tenants of the suit premises in their own rights. It was also alleged in that reply that Kartar Singh paid rent of the suit premises as Karta of the said joint Hindu family.
7. The plaintiffs thereafter filed the present suit for eviction on 8-10-1968 wherein eviction is demanded on two grounds, namely (1) that the two defendants were in unlawful occupation of the premises being trespassers on the death of Kartar Singh, who was a statutory tenant, and (2) that the premises were likely to fall down on account of the dilapidated condition as shown in Clauses (a) to (f) of Para. 5. In the written statement which, is filed to this plaint the two defendants pleaded, inter alia, that the deceased Kartar Singh had entered into contract of tenancy regard-Ing the suit premises for the business of Khalsa Hotel which was carried on by the joint Hindu family as karta of the said family 'consisting of the deceased and all the male members of his family'. In paragraph 3 of the written statement these two defendants have specifically averred as under:--
'The defendants and other male members of the said joint Hindu family are still occupying the premises in their own rights, as tenant. In the alternative the tenancy being contractual, the same enures for the benefit of the heirs of the deceased. The defendants are not the only persons in occupation of the premises and they are not holding the premises as trespassers.'
8. Evidence offered by the parties was thereafter fully recorded. Out of the issues which were framed by the court, there were issues Nos. 1 and 2 which were on the question whether the suit was triable by the civil court and on the question of the suit being bad for non-joinder and mis-joinder of parties. On 12-11-1971 the learned trial Judge disposed of these two issues by holding that the suit was triable by the civil court and that the other legal representatives of the deceased Kartar Singh, who were not joined as parties, were proper parties. The court, therefore, allowed the plaintiffs an opportunity to amend the plaint and to implead other heirs of Kartar Singh as parties to the suit. Thereupon the plaintiffs filed the amended plaint and joined defen-dant-respondents Nos. 3 to 6 as parties to the suit and further prayed for a decree for eviction of all the defendants. Written statement to the amended plaint was thereafter filed by the defendants who were joined pursuant to the order of the Court. In paragraph 2 of the reply on merits these defendants specifically pleaded as under:--
'The defendants became tenants after the death, of Sardar Kartar Singh, which occurred on 8-2-1968 and secondly, under the provisions of Section 4 read with Section 14 of the Himachal Pradesh Urban Rent Control Act, 1971 the defendant No. 6, being the widow of Sardar Kartar Singh, and being in occupation of the premises along with other defen-dants, the members of joint Hindu family has right to occupy the premises.'
9. After the amendment of the pleadings as referred to above, the defendant No. 6 was examined and thereafter the learned trial Judge pronounced his judgment. According to the view taken by the learned trial Judge the defendants have failed to prove that the deceased Kartar Singh had entered into lease agreement with the landlord on behalf of his joint Hindu family, as its karta. According to the learned trial Judge, he acquired tenancy rights in his personal capacity and, therefore, the members of the joint Hindu family of Kartar Singh were not the tenants of the suit premises after his death.
10. According to the learned trial Judge, however, defendant No. 6, who is the widow of Kartar Singh, has a right to retain the possession of the suit premises as tenant in view of Section 4 of Himachal Pradesh Urban Rent Control Act, 1971, which has come into operation during the pendency of the suit, and therefore, the plaintiffs' suit for eviction is liable to be dismissed.
11. As already noted above, the plaintiffs have based their suit even on the ground that the suit premises are in dilapidated condition and unfit for human inhabitation. This contention of the plaintiffs has been dismissed by the learned trial Court on the ground that it was irrelevant to the present suit.
12. Being aggrieved by this decision of the learned trial Judge the plaintiffs have approached this court in this appeal.
13. During the course of the hearing of this appeal the learned Advocate of the respondents repeated his contention that the tenancy was in favour of the joint Hindu family of Kartar Singh and, therefore, even if it is believed that the deceased Kartar Singh was a statutory tenant at the time of his death, the tenancy in question enures in favour of the other members of the joint Hindu family. In the alternative, it was contended on behalf of the respondents that at any rate, facts of the case show that after the expiry of the fixed term of tenancy, as evidenced by the last rent note. Kartar Singh was holding over the premises as a tenant by an implied agreement between the parties and, therefore, the contractual tenancy between Kartar Singh and the plaintiffs continued till the time of his death. It was contended that in view of this, the legal representatives of the deceased Kartar Singh were entitled to inherit the contractual rights of tenancy which were enjoyed by Kartar Singh
14. The learned Advocate of the respondents further contended that even if he failed in his above referred two contentions, defendant No. 6, who is the widow of Kartar Singh, was entitled to retain the possession of the premises as a tenant by virtue of the operation of Section 4 of the Himachal Pradesh Urban Rent Control Act, 1971, which came into operation during the pendency of the suit.
15. As for the plaintiffs' contention that they are entitled to an eviction decree on the ground that the suit premises are in a dilapidated condition and unfit for human inhabitation, the contention of the learned Advocate of the respondents was that this question cannot be gone into by a civil court as it falls within the exclusive jurisdiction of the authorities contemplated by the Rent Act.
16. In view of these contentions, the following four questions arise for determination in this appeal:--
1. Whether the tenancy was in favour of the joint Hindu family represented by its karta, Kartar Singh?
2. Whether the deceased Kartar Singh was holding over the tenancy rights over the suit premises at the time of his death and whether contractual tenancy in his favour thus subsisted till his death? If so, what is its effect?
3. Whether by virtue of the operation of Section 4 of the Himachal Pradesh Urban Rent Control Act, 1971, defendant No. 6, who is the widow of the deceased Kartar Singh, is entitled to retain the possession of the suit premises as a tenant?
4. If so, whether the civil court can order eviction on the ground of the premises being unfit for human inhabitation, which is a ground covered by the provisions of the Rent Act as applicable to the area.
17. As for the first contention of the respondent namely, that the tenancy was originally created in favour of the joint Hindu family of Kartar Singh, we are of the opinion that the finding recorded by the learned trial Judge is totally unassailable. In the foregoing portion of this judgment we have referred to the various rent notes as found at Exs. P-15, P-16 and P-17. All these rent nptes clearly reveal that the tenancy rights were obtained by Kartar Singh in his personal capacity as the 'proprietor' of Pratap Khalsa Hotel. Even the rent receipts which are produced in the record of the case reveal that these rights were obtained by Kartar Singh in his personal capacity. The proceedings which were initiated by the parties before the Rent Controller in the year 1955, as evidenced by reference to Exs. P-18, P-19 and P-20 reveal the same fact. There is nothing in evidence to show that the rent which was paid by Karbar Singh during all these years came out of the funds of the joint Hindu family. Jt is, of course, true that the hotel business, which Kartar Singh conducted in the suit premises, was the business for the benefit of the whole family, and that the income-tax returns for the same were filed in the name of joint Hindu family of Kartar Singh. But that was a matter of arrangement between Kartar Singh and the members of his family, and did not in any manner affect the intrinsic nature of the contract of tenancy which Kartar Singh had entered into with the landlord. The landlord was obviously not concerned as to how, and in what manner, Kartar Singh conducted his business after he had taken the suit premises as a tenant in his personal capacity. Under these circumstances we have no hesitation in confirming the finding of the learned trial Judge that the defendants-respondents have failed to prove that the tenancy rights were acquired by Kartar Singh for and on behalf of the joint Hindu family represented by him. In that view of the matter it cannot be said that tenancy rights enure in favour of the defendants as members of the joint Hindu family after the death of Kartar Singh.
18. The alternative contention of the respondents was that at any rate, the evidence reveals that after the expiry of the terms of tenancy evidenced by rent note Ex. P-17 dated 11-6-1954, there was a litigation between the parties in the court of the Rent Controller and as a result of a compromise arrived at in this litigation a fresh rent note was executed on 30-12-1955, and even after the expiry of the fixed term stipulated by that rent note, Kartar Singh is found to have paid the rent periodically, and the said rent was accepted as such without any reservation by the landlord. It was contended, therefore, that even if it is believed that the last term of tenancy was a fixed one and the same expired before the death of Kartar Singh, the acceptance of rent after the said expiry of the term of tenancy by the landlord without any reservation would amount to holding over of the tenancy rights by Kartar Singh, and since this holding over continued till the death of Kartar Singh, contractual rights of tenancy in favour of Kartar Singh subsisted till the time of his death. If that be so, contended the learned Advocate of the defendants, all the legal representatives of Kartar Singh, who are the present defendants, would be entitled to inherit the contractual tenancy rights and would not, therefore, be liable to be evicted in the present suit.
19. On perusal of the pleadings of the parties we find that this contention isnot available to the defendants-respondents. If again a reference is made to theoriginal written statement as well asthe amended written statement filed bythe defendants, it will become evidentthat nowhere therein the defendantshave raised the contention relating toholding over. The principle of holdingover as found enacted in Section 116 of theT. P. Act rests on an implied agreementbetween the landlord and the tenantconcerned regarding the continuation ofthe tenancy rights even after the original tenancy has come to an end. Underthe circumstances, this implied agreement must be pleaded and the attentionof the parties should be focussed on thatplea so that both the parties have ampleopportunity to prove their respectivestands with regard to this plea. Now ifa reference is made to both the writtenstatements filed by the defendants, itwill be evident that they have nowheresaid that after the expiry of the fixedterm of tenancy as evidenced by thelast rent note, there was an impliedagreement between the parties to continue the tenancy rights in favour ofKartar Singh. The only and the simpleplea which is raised by the defendantsin their written statements is that fromthe very beginning the tenancy rightswere acquired by the joint Hindu familyof Kartar Singh, and, therefore, the othermale members of the family of KartarSingh were entitled to enjoy thesetenancy rights even after the death ofKartar Singh. Therefore, if the defendants fail in proving this specific plea,which is raised by them in their writtenstatements, they cannot fall back upona fresh plea, involving certain disputedquestions of facts.
20. However, even if it is held that the above referred plea is available to the defendants, the only evidence which is available from the record of the case with regard to holding over is the acceptance of rent by the landlord from Kartar Singh till his death without any reservation. This becomes clear if we refer to the rent receipts found at Exs, D-18 to D-37. All these receipts are covering the period from 1956 to March 1965. As already noted above Kartar Singh died on 8-2-1968, therefore, the question is whether a mere acceptance of rent by the landlord without any reservation amounts in all cases to an implied agreement to allow the tenant to continue occupation of the rented premises. In ordinary course, acceptance of rent by the landlord after the expiry of the original tenancy may be considered as a piece of evidence to show the existence of this implied agreement. But if there is no more evidence in the record of the case, and if the tenancy rights of the tenant concerned are statutorily protected by a special enactment even after the expiry of the original tenancy rights, the mere acceptance of rent without reservation after the said expiry of the tenancy rights, would not necessarily lead the court to the conclusion that there was an implied agreement between the landlord and the tenant to continue the original agreement of tenancy.
21. In Ganga Datt v. Kartik Chandra Das (AIR 1961 SC 1067) the Supreme Court has held that where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises by virtue of the statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.
22. As already noted above, it was for the defendants-respondents to plead and to prove that the acceptance of rent by the landlord even after the expiry of the tenancy rights amounted to an implied agreement to continue the tenancy. We have already observed that no such plea is raised by the defendants in any of their written statements. When the tenant is statutorily protected, he becomes a statutory tenant. The landlord is bound to accept rent from such a statutory tenant and, therefore, mere proof of acceptance of rent from a statutory tenant would not be sufficient to arrive at a conclusion that there was a fresh implied agreement between the parties as regards the continuation of the tenancy rights. In Bhawanji v. Himatlal (AIR 1972 SC 819) the Supreme Court has observed that if the tenant asserts that the landlord accepted rent not as a sta--tutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it.
23. In a recent decision in Civil Revision No. 74 of 1975 of this Court reported in AIR 1977 Him Pra 21 (Ran Singh v. Sagar Chand) the Hon'ble the Chief Justice has held that since, notwithstanding termination of contractual tenancy by notice issued under Section 111 (h), T. P. Act the tenant's possession is protected by the House Rent Act applicable to the place, the tenant is bound to pay amount equal to the rent and, therefore, the provisions of Section 113, T. P. Act laying down that landlord's acceptance of rent for period subsequent to such termination of tenancy amounts to waiver of notice would not apply. It is further observed in that case that the landlord can, notwithstanding the acceptance of rent, sue the tenant for possession on grounds available to him under the House Rent Act.
24. In view of this position it is not possible to hold that the deceased Kartar Singh was holding over the tenancy rights at the time of his death, and that the defendants, who are his legal representatives, have inherited those contractual tenancy rights on his death.
25. Now coming to the point No. 3 the question is whether the defendant No. 6, who is the widow of the deceased Kartar Singh, is entitled to retain the possession of the suit premises as a tenant in view of the provisions contained in Section 4 of the Himachal Pradesh Rent Control Act, 1971. When the suit was filed the parties were governed by the provisions of the East Punjab Urban Rent Restriction Act, 1949. Under the provisions of that Act, neither the legal representatives, nor the widow of the deceased statutory tenant, had any right to retain the possession of the premises in question after the death of the statutory tenant. However, during the pendency of the suit the Himachal Pradesh Act came to be applied. Section 4 of this Act is in the following terms:--
'4. (1) Notwithstanding anything contained in any other law, it shall be lawful after the death of a tenant for his widow to retain possession of the build-ing or rented land as tenant of a landlord till she dies or remarries on the same terms and conditions on which the tenancy was held toy her husband and all the provisions of this Act shall apply to such a case.
(2) After the death or remarriage of the widow or where after the death of a tenant there is no widow, then in such a case, notwithstanding anything contained in any other law, it shall be lawful for minor sons or daughters of such a tenant to retain possession of any building or rented land of a landlord till the age of majority of the sons or till the daughters get married, on the same terms and conditions on which the tenancy was held by their father.' According to this section the widow of a deceased 'tenant', which term would include even a statutory tenant, is entitled to retain the possession of the building in question till she dies or remarries on the same terms and conditions on which the tenancy was held by her husband. This provision of the Himachal Pradesh Act should be read with the provisions as regards repeal and savings as contained in Section 28 thereof which is in the following terms:--
'28. (1) The East Punjab Urban Rent Restriction Act, 1949 as amended from time to time as in force in the areas comprised in Himachal Pradesh immediately before 1st November, 1966 and the East Punjab Urban Rent Restriction Act, 1949 as amended from time to time in its application to the areas added to Himachal Pradesh under Section 5 of the Punjab Reorganisation Act, 1966 are hereby repealed.
(2) Notwithstanding such repeal, all suits and other proceedings under the said Acts pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provisions, of the said Acts, as if the said Acts had continued in force and this Act had not been passed:
Provided that Section 4 shall be applicableto all pending suits and proceedings forthe fixation of fair rent or evictionagainst widows, minor sons or unmarried daughters of any tenant and all suchsuits and proceedings shall be disposedof in accordance with the provisions ofthis Act:
Provided further that the provisions for appeal under the said Acts shall continue in force in respect of suits and proceedings disposed of thereunder: Provided further that notwithstanding the provisions of Section 14, all orders of ejectment passed whether before or after the commencement of this Act under the provisions of the Acts hereby repealed, shall be executed in accordance with the provision's of the Act under which they are passed.' Sub-section (2) of S 28 contains the first proviso which is relevant for our purpose. According to this proviso, the provisions contained in the above quoted section shall be applicable to all pending suits and proceedings for eviction against widows and minor sons and unmarried daughters of a tenant. Therefore, defendant No. 6 being the widow who has not remarried would be entitled to retain the possession of the disputed premises even after the death of Kartar Singh.
26. However, the contention of the learned Advocate of the appellants with regard to the application of Section 4 was that the use of the word 'retain' with regard to the possession of the premises as found in Sub-section (1) of Section 4 suggests that the widow must be in possession of the disputed premises* on the death of the tenant because the use of the word 'retain' implies the continuation of the possession which is already there. It was pointed out by the learned Advocate of the appellants that if a reference is made to the written statements filed by the defendants it becomes evident that, according to the defendants, only the defendants Nos. 1 and 2 were in possession of the suit premises on behalf of all male members of their joint Hindu family. The contention was that on the pleadings of the defendants themselves the possession was never with the defendant No. 6, who is a female member of the family, at the time when Kartar Singh died. It was also pointed out that the defendant No. 6 in her deposition has nowhere stated, even after the pleadings were amended, that she was in possession of the suit premises at the time when Kartar Singh died. Under the circumstances, it was contended, it can not be said that the defendant No. 6 is entitled to 'retain' and continue the possession of the premises. In other words, according to the learned Advocate of the appellants Section 4 of the Himachal Pra-desh Act has no application to the facts of this ease.
27. It is no doubt true that the word 'retain' connotes the idea of continuation of possession which was already there, and, therefore, if it is found that after the death of a tenant his widow has left the possession of the disputed premises, then after leaving this possession she cannot claim the reinstatement of the said possession under the provisions contained in Section 4 of the Himachal Pradesh Act. But, is it possible to say having regard to the facts of this particular case, that the defendant No. 6 had left the possession of the suit premises either at the time of the death of Kar-tar Singh, or at any time subsequent thereto?
28. The important fact to be noticed is that the evidence which is recorded in the case reveals very clearly that the hotel business, which Kartar Singh was carrying on in the suit premises, was for the benefit of his joint Hindu family. The defendants have produced income-tax returns of different periods for this business. All these returns have been filed by Kartar Singh in his capacity as karta of his joint Hindu family. It is no doubt true that the defendants Nos. 1 and 2 were actually managing this business, but the evidence reveals that the management was on behalf of the joint Hindu family of which the defendants Nos. 1 and 2 were members. Therefore, if after the death of Kartar Singh, this joint Hindu family business was run in the suit premises through defendants Nos. 1 and 2, can it be said that defendant No. 6, who w.as one of the members of this joint Hindu family, was not retaining the possession of the suit premises? The defendant No. 6 is a lady, and it is an admitted position that she never personally conducted this business, and it cannot be gainsaid that a business belonging to a joint Hindu family can be conducted on behalf of that family by any of its members or servants. Therefore, the possession of the premises by any such managing members of the family would be the possession of all the members of the joint Hindu family. Under the circumstances, there is no escape from the conclusion that after the death of Kartar Singh, the possession of the suit premises was retained by defendants Nos. 1 and 2 on behalf of the members of the joint Hindu family including the defendant No. 6. In that view of the matter defendant No. 6 cannot be said to have left the possession of the suit premises at any time after the death of Kartar Singh. It follows, therefore, that defendant No. 6 being widow of Kartar Singh was entitled to retain the said possession as a tenant on the same terms and conditions on which Kartar Singh was holding the suit premises. We are therefore, of the opinion, that the defendant 'No. 6 is entitled to have the advantage of the provisions contained in Section 4 of the Himachal Pradesh Act and she cannot be evicted from the said premises.
29. Now the last question which remains to be considered is whether the eviction of defendant No. 6 can be ordered by civil court on any of the grounds which are contemplated either by Section 13 of the East Punjab Urban Rent Restriction Act, or Section 14 of the Himachal Pradesh Act. Though the relevant provisions under both the Acts are practically the same, it should be noted that Section 4 of the Himachal Pradesh Act specifically provides that in case of a widow who is entitled to retain possession of the premises taken on lease by her deceased husband all the provisions of the Himachal Pradesh Act shall apply and, therefore, the relevant provisions which we should consider are the provisions contained in Section 14 of the Himachal Pradesh Act
30. The relevant portion of Section 14 of the Himachal Pradesh Act which provides for the conditions for the eviction of tenants is in the following terms:--
'14 (1) A tenant in possession of 3 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 th' termination of the tenancy, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict histenant shall apply to the Controller fora direction in that behalf. If the Controller, after giving the tenant a reason-able opportunity of showing causeagainst the applicant is satisfied:--
(i) x xx
the Controller may make an order directing the tenant to put the landlord inpossession of the buliding or rented landand if the Controller is not so satisfiedhe shall make an order rejecting theapplication.'
31. The section then provides for the grounds on which an eviction of the tenant can be ordered by the Controller. For the present we are not concerned with these grounds.
32. The argument of the learned Advocate of the appellants was that theabove quoted Sub-section (1) of Section 14 doesnot bar the jurisdiction of the civilcourt to try a suit for eviction of a tenant, but what it says is that after thesaid trial if a decree for eviction of atenant is passed that decree shall not beexecuted 'except in accordance with theprovisions of the section'. According tothe learned Advocate of the appellants,therefore, the above provision of therent Act does not debar a civil courtfrom trying a suit for eviction, and whatit prohibits is only the execution of adecree before ascertaining whether thegrounds for eviction, as contemplated bythis section, exist or not. This argumentwas developed further by contendingthat if a particular litigant prefers toapproach the civil court for obtainingan eviction decree against his tenant,then in view of the above referred provisions of Section 14 (1) of the Rent Act, hecan plead one of the grounds for eviction contemplated by Section 14, and if heobtains a decree on that ground, thenthat decree can be straightway executedbecause the requirement of Section 14 (1)would, in that case, be completely satisfied inasmuch as the civil court whosejurisdiction is not barred by this sectionhas gone into this ground after givingopportunity to the tenant to show causewhy his eviction on that ground cannotbe ordered. In support of this contentionthe learned Advocate of the appellantshas drawn our attention to several decisions which go to show that such provisions in the Rent Act do not debar thejurisdiction of the civil court from trying eviction suits.
33. The above contentions raised on behalf of the appellants by their learned Advocate are based on the footing that the civil court's jurisdiction to implement the provisions of the Rent Act is not barred. After anxiously considering this submission we are of the opinion that though the Rent Act does not debar the jurisdiction of the civil court to pass a decree for eviction under the ordinary law of the land, it does bar this jurisdiction for the implementation Of the provisions contained in the Rent Act. We shall presently show how this is so. But before doing so, we shall first refer to the decisions on which the learned Advocate of the appellant has put reliance in support of his contention.
34. The earliest decision on this point is given by a Division Bench of the Madras High Court constituted by Raja-mannar C. J. and Raghava Rao J. in Muhammadunny v M. Unniri reported in AIR 1949 Mad 765. In this case the provisions of Madras Non-Residential Buildings Rent Control Order (1942) were considered. Clause 8 of that Rent Control Order was similar to the above quoted provision of Section 14 of the Hima-chal Pradesh Rent Act. This Clause 8 reads as under:--
'(1) A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree, or otherwise and whetaer before or after the termination of the tenancy, except in accordance with the provisions of this clause;...............
(2) A landlord wishing to evict a tenant in possession shall apply to the Controller for a direction in that behalf.' In that case a suit was filed by the respondent for eviction of the appellant from a building that had been leased to him by the respondent's predecessor in 1936. There were also prayers for arrears of rent and recovery of damages. The District Munsif held that this suit, so far as it related to eviction, was not maintainable because of the provisions of the Madras Rent Control Order above referred to. On appeal the Subordinate Judge held that the suit was maintainable and passed an order of remand. The contention which was raised before the High Court was based on the decision of the same High Court in Mahmood v. Kerala Corporation (AIR 1945 Mad 181) where it was held that there was an ouster of the jurisdiction of the civil court because after the decree was passed by the civil court in favour of the landlord, the landlord in view of the provisions of the above referred Clause 8 would be required to go before the Rent Controller to get possession and, therefore, the eviction decree which the civil cou passed in the matter would be an indulgence in a mere pastime because that decree would be brutum fulmen which could not be carried out into effect without resort being had to other tribunals in whom a discretion was vested to decide if the eviction was to be ordered or not. This view taken in the earlier decision did not find favour with the Division Bench in this case.
Dealing with this point, Rajamannar, C. J. made the following observations:-- 'No doubt, when a special tribunal is indicated for obtaining a particular relief, that tribunal has got exclusive jurisdiction to grant that relief. But then that relief must be a relief not available to a party under general law. Further, the relief for which the special tribunal, namely, the Controller, is indicated, is the relief of eviction, that is, the actual throwing out of the tenant. That may only mean that a Court which passed the decree may not have jurisdiction to execute the decree for possession. But I fail to see how the jurisdiction of a civil Court to entertain a suit and to pass a decree for possession is necesarily ousted. I cannot agree with the learned Judge that a decree for eviction which cannot be executed for a certain time, in this case during the continuance of the Rent Control Order, can be called bru-tum fulmen or that passing a decree for eviction which cannot be at once executed, would be indulging in a mere pastime. One can easily give instances of cases in which the decrees duly passed by competent Courts' cannot be im-mediately executed. But that fact has never been understood to mean that there is an implied ouster of jurisdiction of the Court to entertain and dispose of the suit.'
This decision of the Madras High Court has formed the basis of subsequent decisions on this point and therefore, we shall presently refer to these subsequent decisions.
35. In J. H. Irani v. Chidambaran Chettiar reported in AIR 1953 Mad 650 again the same view was taken following the above referred decision of the same High Court. In the Patna case of Suraj Narain v. Jamil Ahmad reported in AIR 1946 Pat 385 the provisions of Bihar House Control Order 1942 were considered and it was held that there was no provision in any of the sections of the Bihar House Control Order, 1942 which took away the jurisdiction of the Civil Court. But this decision does not rest on the provisions which were similar to the relevant provisions of the Himachal Pradesh Rent Control Act, Section 13 of the Bihar Rent Control Order was to the following effect:--
'no order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this order and performs the conditions of the tenancy.'
Sub-clause (3) of Section 14 of that order provided that the decision of the Commissioner and subject only to such decision an order of the Controller should be treated as final and should not be questioned in any Court. It was contended before the Patna High Court that the effect of this provision of Section 14 was that the exclusive power was vested in the Controller and the jurisdiction of the Civil Court was, therefore, barred. The High Court rejected this contention holding that there was no provision in any of the sections in the Control Order which took away the jurisdiction of the Civil Court and the only jurisdiction which was taken away was that the Order of the Controller when made should not be questioned in any Court. In our opinion this decision which rests on the provisions which are not similar to those with which we are concerned here is not helpful to decide the point.
36. In Debi Pershad v. Chaudhari Bros. Ltd. (AIR 1949 East Punj 357) the provisions of the Punjab Urban Rent Restriction Act, 1947 were considered and it was held that Section 13 (1) of that Act (which is analogous to Section 14 (1) of the Himachal Pradesh Act) merely bars the execution of a decree passed in a suit for eviction of a tenant in possession of a building after the commencement of the Punjab Act but does not prohibit institution of a suit for eviction of a tenant in possession of a building or rented land. It was further observed in that case that the expression 'a decree passed after the commencement of this Act' did not limit the scope of Section 13 (1) to decrees being passed in suits pending at the time when the Act came into force and that the expression equally applied to decrees passed in suits instituted after the Act came into force.
37. A Full Bench of the Punjab High Court again considered this point in Sham Sunder v. Ram Das (AIR 1951 Pun] 52). Considering the provisions of the same Act (Act of 1947) the Full Bench held that Section 13 thereof did not oust the jurisdiction of Civil Court to grant a decree for eviction but merely controlled the execution of such decree by prescribing the procedure for eviction of tenants.
38. In the Punjab case of Sadhu Singh v. District Board (AIR 1962 Punj 204) question of exclusion of the Civil Courts' jurisdiction to pass a decree for ejectment arose with reference to the provisions of East Punjab Urban Rent Restriction Act, 1940, Section 13 of which is similar to Section 14 of the Himachal Pradesh Act. Mahajan J. speaking for the Court observed that Section 13 (1) of the Punjab Act did not affect the jurisdiction of the Court to pass a decree for ejectment and that it merely provided a procedure for eviction of a tenant.
39. It will be obvious that none of these decisions has taken the view that the Civil Court which passes a decree for eviction of a tenant can go into the questions which are required to be decided by the Rent Controller under the Rent Act. The original decision given by the Madras High Court in Maham-madunny v. M. Unniri reported in AIR 1949 Mad 765 (supra) makes it clear that jurisdiction of the civil court to pass an eviction decree against the tenant is not barred because (1) cause of action in an application before the Rent Controller may not be the same as the cause of action in a suit before a civil court and (2) the grounds on which the Controller can order eviction under the Rent Act might be quite different from the grounds on which the civil court might decree eviction. It is, therefore, clear that these decisions have accepted the existence of the jurisdiction of civil courts in the sphere which is not covered by the Rent Act. All these decisions say that the eviction in execution of the decree for ejectment which is passed by the civil court, shall be only in accordance with the provisions of the Rent Act. None of these decisions has said that the provisions of the Rent Act can be implemented by civil court with a view to execute the eviction decree concerned. On the contrary, these decisions make it clear that the civil court shall stay the execution of eviction decree passed by it, if it is found that the matter is covered by the relevant provisions of the Rent Act. As already pointed out some decisions have emphasised the fact that the rent legislation being temporary, the eviction decree passed by the civil court can be executed after the said rent legislation expires.
40. It is thus clear that though all the above referred decisions say that civil courts jurisdiction to entertain an eviction suit against the tenant is not barred, they are no authority for the proposition that civil courts can pass an eviction decree on the grounds covered by the Rent Act and falling within the jurisdiction of the Rent, Controller.
41. It is, therefore, necessary to consider the question whether looking to the provisions of the Rent Act, the jurisdiction of the civil court to order eviction on any of the grounds covered by the said Act is barred either expressly or by necessary implication.
42. In order to decide this question we have primarily to look to the provisions of the Rent Act itself, bearing in mind the well-settled principle that bar to the jurisdiction of the civil court to decide a civil dispute is not to be readily inferred, and the courts should start with the presumption against the ouster of the jurisdiction of ordinary civil courts. Now referring to the provisions of the Himachal Pradesh Urban Rent Control Act, we find that the Act was enacted with a view to unify different enactments on the subject, and
'to give protection, to the tenants against mala fide attempts by the landlords to procure their eviction after the death of the tenants'.
Section 2 of the Act gives various definitions including the definition of the words 'landlord' and 'tenant'. Section 3 contemplates exemption from the provisions of the Rent Act. Section 4 gives special protection to widows and minors of the deceased tenant. Sections 5 to 10 relate to the fair rent which could be charged from the tenants, and Section 14 refers to the grounds on which only, a tenant could be evicted, and also provides for the authority to which an application for evicting the tenant on any of these grounds could be preferred.
43. Section 21 provides for the appeal to the appellate authority. Sub-sections (4) and (5) of Section 21 are important inasmuch as they provide for the finality of the decision of the appellate authority subject to High Court's power of revision. Both these sub-sections are in the following words :--
'(4) Decisions of the appellate authority and subject only to such decision, an order of Controller shall be final and shall not be liable to be called in question in any court of law except as provided in Sub-section (5) of this section.
(6) The High Court may at any time on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceeding or may pass such order in relation thereto as it may deem fit.'
44. Then follows Section 23 which says that any order made by the Controller or an order passed on appeal under the Act shall be executed by the Controller as a 'decree' of a civil court and that for this purpose, the Controller shall have all the powers of the civil court,
45. Section 25 provides for penalties for the contravention of some of the provisions of the Act.
46. This scheme of the provisions of the Act shows that, for evicting a tenant on any of the grounds mentioned in the Act, the legislature has provided for a complete machinery, and has also contemplated hierarchy of original, appellate and revisional authorities for obtaining redress. They further show that certain rights which the tenants did not enjoy under the ordinary law have been newly created, and provisions are made for the implementation of these rights. Ultimately the decision given by the authorities as regards these rights is made final, and the orders passed by the authorities are made executable like the decrees passed by the civil courts. We are of the opinion that in view of all these provisions there is no escape from the conclusion that the legislature clearly intended to create a special and exclusive machinery for the implementation of the provisions of the Rent Act by excluding the jurisdiction of the civil courts with regard to the said implementation.
47. The general principles on which the jurisdiction of the civil court be successfully excluded with regard to the matters covered by a special legislation are well settled and we need not refer to various decisions of the Supreme Court on this point. Before referring to the decisions of the Supreme Court we may refer to three categories of cases mentioned by Willes J. in Wolverhamp-ton New Waterworks Co. v. Hawkesford, (1859) 6 CB (NS) 336 approved by the House of Lords in Neville v. London Express Newspaper Limited (1919 AC 368). These three categories of the cases which would determine the question about the exclusion or otherwise of the jurisdiction of the civil courts are as under :--'One is where there was a liability existing at common law, and that liabi-lity is affirmed by a statute which .gives a special and peculiar form, of remedy different from the remedy which existed at common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy.
The second class of case is, where the statute gives the right to sue merely, but' provides no particular form of remedy: there, the party can only proceed by action at common law.
There is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of second class.'
In our opinion the present ease falls within the category mentioned in the third class in the above quoted observations of Willes J. because the liability contemplated by the Rent Act on the landlord as regards the eviction of the tenant and other matters covered by the Rent Act did not exist at common law and came into existence only by virtue of the Rent Act. After creating this liability the Rent Act provides for a special remedy for enforcing the same. It creates as hierarchy of the authorities which can be approached, and makes the decision of these authorities final. Under these circumstances, the observations of Willes J. with regard to third class of cases are fully applicable to the facts of this case.
48. The Supreme Court of India has approved of the above quoted observations of Willes J. in Dhulabhai v. State of M. P. reported in AIR 1969 SC 78, wherein after exhaustively considering the case law on the question of jurisdiction of civil courts with regard to the matters covered by special legislation, Hidayatullah C. J. speaking for the court has formulated seven principles, the following two of which, are relevant for our purpose. These two principles are stated in the said decision as under :--
'(1) where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but it is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.'
The second principle which is quoted above refers to the cases where there is no express exclusion of the civil court's jurisdiction. In such cases the remedies and the scheme of the Act in question are required to be scrutinised to find out the intendment of the legislature. We have already pointed out how on examination of the scheme of the Himachal Pradesh Rent Act we found that the intention of the legislature was to exclude the jurisdiction of the civil court with regard to those matters which are required to be decided by the Rent Controller.
49. The present case is on all the fours with the facts of the case which the Supreme Court decided in Desika Charyulu v. State of A P. reported in AIR 1064 SC 807. There the Supreme Court considered the provisions of Madras Estates (Abolition and Conversion into Ryotwari) Act (36 of 1948). The point which arose before the Supreme Court in that case was whether the question whether ''inam estate'' was within the exclusive jurisdiction of Settlement Officer and of Tribunal and whether the jurisdiction of the civil courts was barred to decide this question. There was no provision in the Act in question an terms barring civil courts from entertaining suits for resolving this question. But the Supreme Court found after considering the provisions of the Act before them that civil court's jurisdiction was barred by necessary implication. In arriving at this conclusion the Supreme Court con-sidered the provisions of Section 9 which empowered the Settlement Officer to enquire and determine whether any inam village in Ms jurisdiction was an Jnam Estate or not. This section also provided for the procedure to be adopted by the Settlement Officer before giving his decision and then provided for in Sub-section (4) thereof an appeal against his decision to the Tribunal. Clause (c) of this Sub-section (4) made the decision of the Tribunal final in the following words :--
'(c) The decision of the Tribunal under this sub-section shall be final and shall not be liable to be questioned in any court of law'.
Sub-section (6) of that section made the decision of the Settlement Officer and the Tribunal binding on all persons claiming an interest in the land.
50. Considering this scheme of Section 9 the Supreme Court observed as under :
'Section 9 (4) (c) in terms bars the jurisdiction of the Civil Court from questioning the correctness of the appellate decision. In such a situation there is an express bar to the jurisdiction of the Civil Court to adjudicate upon the question whether 'any inam village' 'is an inam estate or not'. The next question, and that is what was urged before us, is whether the jurisdiction of the Civil Court is not barred when the Settlement Officer has as a result of his enquiry determined that question and nothing more has happened. It was urged that there was no bar where the matter rested merely with the decision of a Settlement Officer and support was sought for this contention from the circumstance that Section 9 (4) (c) in terms imparted finality solely to the orders of the Tribunal, and this could not be read so as to make the same provision applicable to the orders of the Settlement Officer. This argument entirely lacks substance. Clause (c) has to be read in conjunction with the positive provision in Sub-section (6) with which it is closely related and under this the decision of the Tribunal is declared to be binding on all persons interested, and a precisely similar effect is predicated as regards the decisions of the Settlement Officer where no appeal has been filed from his decision. The Act thus never meant to draw any distinction between orders of Settlement Officers which were affirmed by Tribunals and other orders which by reason of their not being appealed against within the time prescribed, attained finality.'
Then in the same paragraph the Supreme Court has further observed as under :--
'The very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends, is sufficient in most cases for inferring that the jurisdiction of the Civil Courts to try the same matter is barred. In addition we have the provision in Section 9 (4) (c) read with Section 9 (6) to which we have adverted. In these circumstances, we have no hesitation in holding that to the extent of the question stated in Section 9 (1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive and that the Civil Court are barred from trying or retrying the same question.'
51. In Brij Raj Krishna v. Shaw and Brothers reported in AIR 1951 SC 115 the Supreme Court considered the provisions contained in Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947). The question which arose to be considered was as regards the jurisdiction of the civil court to question the order passed by the Controller under the Act. Speaking about Section 11 of that Act the Supreme Court observed that it was self-contained section and, therefore, it was wholly unnecessary to go outside the Act for determining whether the tenant was liable to be evicted or not and under what conditions he could be evicted. Section 18 of that Act provided that any p'erson aggrieved by the order passed by the Controller might prefer an appeal to the Commissioner of the Division and further provided that the decision of the Commissioner, and subject only to such decision, an order of the Controller should be final and should not be liable to be questioned in any court of law whether in a suit or other proceedings by way of appeal or revision. Speaking of this provision the Supreme Court observed as under :--
'The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non-payment of rent, and his decision on that question is essential before an order can be passed by him under Section 11.' Thereafter referring to the principles stated by Esher, M. R. in Queen v. Commissioner for Special Purposes of the Income-tax, (1888) 21 QBD 313 at p. 319, with regard to the circumstances under which the decision of such Special Tribunals could be interfered with in Civil Court, the Supreme Court has observed' as under :-- 'There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a 'jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have wrongly decided the question of nonpayment of rent, which by no means is clear, his order cannot be questioned in a civil court.'
Of course the above decision is with regard to the jurisdiction of the civil court to question the final decision of the Special Tribunals but that position is suggestive of the fact that the legislature intended to exclude the jurisdiction of the civil court even to try the matters regarding which the decision of the Special Tribunal is made final. In Ambala Bus Syndicate v. Indra Motors Kurali reported in (1968) 70 Pun LR 960 a Division Bench of the Punjab High Court considered the provisions of East Punjab Urban Rent Restriction Act, 1949 and the effect of Section 15 which made the decision of the Rent Controller final with regard to the matters covered by the said Act. Considering the provisions of Section 15 the court observed that in Section 15 of the Act there was a clear implication of the ouster of the jurisdiction of an ordinary civil court on all matters and questions which the Rent Controller had to decide by his order, which was final subject only to the decision of the Appellate Authority. The court further observed that it followed from this that what was a matter properly and pertinently within the jurisdiction of the Rent Controller and had been disposed of in terms of the Rent Act was outside the jurisdiction of ordinary civil courts.
52. In view of this state of law we are of the opinion that even though the civil court would have jurisdiction to try an eviction suit under the provisions of the general law of the land, it has no jurisdiction to implement the provisions of the Rent Act and try any proceeding for the eviction of a tenant on any of the grounds contemplated by the Rent Act. If the appellants want to secure the eviction of defendant No. 6, who is entitled to retain possession of the suit premises after the death of her husband in view of Section 4 of the Himachal Pradesh Act, on any of the grounds mentioned in the Rent Act, then the remedy would be to approach the Rent Controller under the Rent Act. We find that in this case the appellants claim eviction on the ground that the suit premises have become unsafe and unfit for human habitation. This is a ground mentioned in Sub-section (3) (a) (iii) of Section 14 of the Himachal Pradesh Urban Rent Control Act. For granting eviction on this ground the Civil Courts have no jurisdiction, and therefore we refuse to go into the merits of the same.
53. The result, therefore, is that the plaintiffs' suit for possession must fail. We confirm the decree passed by the lower court and dismiss this appeal with costs.