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P.L. Morada Vs. S.D. Bakshi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 40 of 1973
Judge
Reported inAIR1974HP57
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 151; ;East Punjab Urban Rent Restriction Act, 1949 - Sections 13 and 17; ;Himachal Pradesh Urban Rent Control Act, 1971 - Sections 2, 14, 23, 28(1) and 28(2)
AppellantP.L. Morada
RespondentS.D. Bakshi
DispositionAppeal allowed
Cases ReferredSita Ram v. Jai Babu
Excerpt:
- .....tenant of grange villa, simla in execution of an order of eviction passed against him by the rent controller simla, in a petition under section 13 of the east punjab urban rent restriction act, 1949 have been dismissed. the case appears to have some chequered history. sometime in 1970 shri s. d. bakshi landlord of grange villa filed a petition under section 13 of the east punjab rent restriction act 1949 (hereinafter to be referred as the rent restriction act. 1949) against his tenant major p. l. morada on ground of personal requirement of the accommodation, which was allowed on 22-3-1972. it is. however, to be noticed that the himachal pradesh urban rent control act, 1971 (hereinafter to be referred as the rent control act 1971) had come into force w. e. f. 5-11-1971, admittedly.....
Judgment:

D.B. Lal, J.

1. This second appeal is directed against the decision of the District Judge Simla, affirming on appeal a decision of the Senior Sub-Judge, Simla, in execution case under Section 47 read with Section 151 of the Code of Civil Procedure, whereby objections of one Major (Retired) P. L. Morada, tenant of Grange Villa, Simla in execution of an order of eviction passed against him by the Rent Controller Simla, in a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 have been dismissed. The case appears to have some chequered history. Sometime in 1970 Shri S. D. Bakshi landlord of Grange Villa filed a petition under Section 13 of the East Punjab Rent Restriction Act 1949 (hereinafter to be referred as the Rent Restriction Act. 1949) against his tenant Major P. L. Morada on ground of personal requirement of the accommodation, which was allowed on 22-3-1972. It is. however, to be noticed that the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter to be referred as the Rent Control Act 1971) had come into force w. e. f. 5-11-1971, admittedly during the pendency of that application. As against the order of eviction. Major Morada preferred an appeal before the Appellate Authority but his appeal was dismissed on 26-7-1972. Thereafter Major Morada came in revision before the High Court and the revision was dismissed on 9-11-1972. A review petition was also preferred and the same was also dismissed on 17-1-1973. Thereafter on 12-4-73 another proceeding started, inasmuch as Shri S. D. Bakshi filed an application for the execution of the order passed by the Rent Controller, under Section 17 of the Rent Restriction Act 1949. These proceedings started in the Civil Court and the learned Senior Sub-Judge. Simla, executed the order as if it was a decree of that Court. In this execution proceeding, the present objections were raised by the tenant. His contention was that the Rent Controller who had passed the order of eviction no longer retained his jurisdiction as the Rent Control Act 1971 came into force and a fresh Controller was required to be appointed under Section 2 (b) of that Act. As such the order of eviction passed by the erstwhile Controller was a nullity and the same could not be executed in the Civil Court. It was stated that under Section 23 of the Rent Control Act. 1971, the execution of the order could be undertaken by the Controller appointed under Section 2 (b) of the new Act. Similarly, contended the tenant, that the Appellate Authority was also devoid of jurisdiction because it was not appointed under the Rent Control Act 1971 and the order being a nullity could not be confirmed by it. In this manner, the very order of eviction was vitiated. It was further contended by the tenant that the execution proceedings were not pending on the date of, the commencement of the Rent Control Act 1971 and hence these were not protected under Sub-section (2) of Section 28 of the said Act. As such the provisions of the new Act applied to such proceedings and in view of its Section 14 the order of eviction could not be executed except in accordance with the provisions of that section. These objections were, repelled by the learned Senior Sub Judge and it was held that the order of eviction was a valid one and that the execution could be sought from the Civil Court under Section 17 of the Rent Restriction Act 1949. Against the order of the Senior Sub Judge, the tenant came in appeal before the District Judge but could not succeed. The learned District Judge dismissed the objections. The present second appeal is directed against that decision.

2. The contention of the respondent-landlord has been that the Executing Court could not go behind the decree and was concerned only with the questions relating to execution, discharge and satisfaction of the order sought to be executed. Besides that, it is also contended that Section 28 (2) of the Rent Control Act 1971 decidedly conferred jurisdiction upon the Controller and the Appellate Authority appointed under the Rent Restriction Act 1949 and the order was liable to be executed as if the new Act had not been passed.

3. On behalf of the appellant, an application was filed indicating that the landlord respondent has assumed possession over a considerable portion of the accommodation which has since fallen vacant and as such he no longer stands in need of any further accommodation so as to eject the tenant-appellant. Whatever new facts regarding vacation of such accommodation, have been alleged by the appellant stand admitted by the respondent. According to the learned Counsel representing the respondent, any subsequent development regarding a portion of accommodation having fallen vacant cannot be taken regard of, and the order of eviction has to be executed in the manner it was passed by the Controller and does not merit reconsideration on any such ground. The appellant, of course, raised the plea that even at the stage of the execution of the order, subsequent developments could be considered and for the purpose of execution the subsequent convenience thus afforded to the landlord who has been put into possession of much more, accommodation than to what he was previously entitled, would be a relevant factor.

4. The state qf pleadings, in their ultimate analysis, raised the question of jurisdiction. The appellant puts forward the plea of inherent lack of jurisdiction in the Controller and in the Civil Court to execute the decree. If such a lack of jurisdiction is proved, the very order of execution would be a nullity, and in a situation of like nature, in our opinion such a question relating to jurisdiction could be raised at any stage in the proceedings. As evident the plea does not relate to wrongful exercise of jurisdiction but relates to absolute want of jurisdiction in the Controller or in the Civil Court to execute the order. Such a plea could be raised at the stage of the execution of the order. Therefore, the objection relating to the limited question of execution, discharge and satisfaction of a decree, ordinarily amenable in a proceeding under Section 47 of the Code of Civil Procedure, would hardly be open in the present case. In this regard assistance can be sought from Chandrika Misir v. Bhaiyalal. AIR 1973 SC 2391. The Supreme Court has held that where the Court is inherently lacking in jurisdiction the plea as to jurisdiction may be raised at any stage, even if it was not raised in trial Court. The learned Counsel for the respondent on the other hand argued that the ultimate order in review passed by the High Court has upheld the order of the Controller and, therefore, the plea regarding jurisdiction would not be sustainable. There is no merit in this argument. The High Court has only upheld the order of the Controller and we do not intend to set aside that order as a result of this appeal. At the same time the order of the Civil Court executing the decision of the Controller under Section 17 of the Rent Restriction Act, 1949 can be struck down as bad having lacked in jurisdiction.

5. It is then asserted with considerable force that Section 28 (2) of the Rent Control Act 1971 did not protect the order passed in execution proceedings. In order to appreciate the reasoning put forward by the learned Counsel, it would be proper to extract Section 28:

'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 applicable to all pending suits and proceedings for the fixation of fair rent or eviction against widows, minor sons or unmarried daughters of any tenant and all such suits and proceedings shall be disposed of in accordance with the provisions of this 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.'

6. It is manifest 'suits and other proceedings' pending at the commencement of the new Act were to be continued and disposed of in accordance with the provision of old Acts 'as if the said Act had continued in force and this 'new' Act had not been passed'. The crux of the matter lies in the interpretation of the expression ''pending' used in this sub-section. It can admit of no doubt that the execution application was filed on 12-4-1973 when the Rent Control Act 1971 had come into force. Much less to say even the order of ejectment was passed on 22-3-1972 when the new Act was in force. The execution proceeding has been considered under entirely a separate provision in the two Acts. Under Section 17 of the Rent Restriction Act. 1949, every order passed by the Controller under Section 13, and every order passed on appeal under Sec-section 15 of that Act, are executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Therefore, the order of eviction passed by the Controller under Section 13 stands independent of the order passed under Section 17 in execution of that order by the Civil Court. Similar is the position under the Rent Control Act, 1971. The order made by the Controller or an order passed on appeal under that Act is executable bv the Controller as a decree of a Civil Court and for this purpose the Controller shall have all the powers of a Civil Court. The marked difference in the two provisions has to be noted. Under the Rent Restriction Act, 1949 the execution is to be made by the Civil Court while under the Rent Control Act. 1971 the execution is to be made by the Controller. There can be no denial that execution application has to be moved and only then an order of ejectment can be obtained. The order of eviction which may have been passed under Section 13 of the old Act, or under Section 14 of the New Act, if left to itself would not give possession to the landlord. A fresh proceeding of execution of that order has got to be commenced within the relevant provision. There may be a case where the order of eviction is left as such and is not executed by the landlord as some compromise may have arrived between him and the tenant. A reading of Section 28 makes it clear that a separate provision has been made therein for appeals and the second proviso, which in fact should not be a proviso to Sub-section (2) but should rather be an independent sub-section, although that point is not material, lays down, that the appeals against orders passed under the Rent Restriction Act. 1949 could be continued within the provisions of that Act. The legislature therefore, thought that a separate provision should be made for appeals and had they thought it proper to do so they could have similarly made a separate provision for execution applications. The very fact that they have not done so, gives strength to our argument that an execution case has got to be pursued under Section 23 of the Rent Con-trol Act, 1971 as Section 17 stands repealed under Sub-section (1) of Section 28.

7. The learned counsel for the appellant brought to our notice Asgarali Nazarali v. State of Bombay, AIR 1957 SC 503. Their Lordships of the Supreme Court observed in that case that a legal proceeding is 'pending' as soon as commenced and until it is concluded, i.e., so long as the Court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. That case related to a criminal proceeding for an offence under the Prevention of Corruption Act, 1947 before a Presidency Magistrate in which the only thing which remained to be done was pronouncement of the judgment by the said Magistrate. The case was not concluded and was held pending before the Presidency Magistrate at the commencement of the Criminal Law Amendment Act, 1952 which conferred jurisdiction for such a case upon the Special Judge. In that background, the learned Judges observed, that the legal proceeding was pending and the Court having original cognizance could make an order on the matter in issue before him. The present case with which we are concerned stands on a different footing. Here the very execution proceeding commenced after the New Act came into force. For the reasons stated above, the execution proceeding could not be a proceeding which necessarily followed in the wake of the order of eviction as that order could not even be executed in certain circumstances. The Controller having passed the original order of eviction could not make the order of execution as Section 23 of the New Act came into force and the order was executable by the Controller appointed under the New Act and not by the Civil Court. Therefore, no assistance can be taken by the learned Counsel from this authority.

8. The learned District Judge has observed that under Section 2 (b) of the Rent Control Act, 1971, only one category of Controller is appointed and the other category of Controller is not appointed who can execute an order of eviction passed under Section 13 of the old Act. The learned District Judge seems to have assumed that the execution proceeding was pending before the commencement of the new Act and as such Section 17 of the old Act applied and the very same Controller who passed the order of ejectment could execute his order as if he was a Civil Court. Such an assumption could not legitimately be made when the execution proceeding was not pending on the date of the commencement of the Act. Under Sub-section (1) of Section 23 the execution case was to be treated as initiated under Section 23 and such a proceeding could be commenced only before a Controller appointed under the new Act. The learned District Judge further considered that under Section 23 of the Rent Control Act, 1971, an order of the Controller appointed under that Act is executable and as in the present case the order of such a Controller was , not being executed Section 23 is not applicable. This argument again does not hold water because it presumes the existence and availability of Section 17 of the Rent Restriction Act. 1949 for the purpose of this execution.

9. The learned Counsel for the appellant even contended that the order of ejectment passed by the Controller appointed under the Rent Restriction Act, 1949 was a nullity and so was the order of the Appellate Authority. In our opinion this contention cannot be upheld because the proceedings under Section 13 of the Rent Restriction Act, 1949 no doubt commenced before the enforcement of the Rent Control Act, 1971. For such a proceeding complete protection was given by Sub-section (2) of Section 28 and the said proceeding was to be continued and disposed of in accordance with the provisions of the old Acts 'as if the said Acts had continued in force and the new Act had not been passed'. Hence it could not be stated that there was any lack of jurisdiction in respect of such proceedings. A saving clause is used to protect something from immediate interference or destruction but where the main enactment is clear, a saving clause can have no effect on the interpretation on the main enactment so as to exclude from its scope, what would clearly fall within its terms. The rule is that if the saving clause is not reconcilable with the object of the statute or any part of it, the same shall be ineffective or void. The saving clause contained in Section 28 has not interfered or destroyed the suit or proceeding pending at the commencement of the Act and it has to be continued and disposed of as if the new Act had not been passed. There is no question of any reconciliation between the saving clause and Sub-section (1) of Section 28. The learned Counsel urged in reply that two parallel authorities could not function under the new Act so that although the suit or proceeding regarding eviction has been kept alive under the saving clause, the authority deciding such a suit or proceeding was not kept alive and new authorities were required to be appointed. We could not appreciate the import of this argument. As evident from Section 28 the Saving Clause was circumscribed by saving that the provisions of Section 4 of the Rent Control Act, 1971 were applicable to all pending suits and proceedings for the fixation of fair rent upon eviction against widows, minor sons or unmarried daughters of any tenant and all such suits and proceedings are to be disposed of in accordance with the provisions of the new Act. It is further provided therein that an order of ejectment passed by the Controller appointed under the Rent Restriction Act, 1949, could be appealed against to an authority appointed under that Act and could be disposed of under the provisions of appeal provided in that Act. It is. therefore, evident that the Controller appointed under the old Act had to continue functioning for a limited purpose even if a new Controller has been appointed under Section 2 (b) of the Rent Control Act, 1971. Under the very scheme of Section 28 two parallel authorities have to function and we have to interpret the statute as it exists. Nor do we find anything illogical in such a state of affairs. It would not be correct to say that although within the saving clause the pending proceedings were kept alive, yet these proceedings could not be entertained by the authorities appointed under the old Act.

10. Therefore, it is not difficult for us to conclude that the order of eviction passed by the Controller appointed under the Rent Restriction Act. 1949, was a valid order. But there is difficulty regarding its execution. We have already held that the execution of such an order could only be made under Section 23 of the Rent Control Act. 1971 and that can alone be done when a fresh order of eviction is obtained from a Controller appointed under Section 2 (b) of this Act.

11. The learned Counsel then stressed that the landlord would have to undergo another proceeding under Section 14 of the Rent Control Act, 1971, despite the fact that he has already obtained a valid order of eviction under Section 13 of the previous Act. There are certain clear concepts of interpretation of statutes and we have to follow these concepts. We have to interpret Section 28 as it exists. Where the language is clear and unambiguous, nothing can be added or subtracted so as to give a different meaning. The function of the Court is to interpret and not to legislate. A very useful observation is extracted from State of Rajasthan v. Mrs. Leela Jain, AIR 1965 SC 1296. which is as below:--

'Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court. No doubt, if there are other provisions in the statute which conflict with them, the court may prefer the one and reject the other on the ground of repugnance. When the words in the statute are reasonably capable of more than one interpretation, the object and purpose of the statute, a general conspectus of its provisions and the context in which they occur might induce a court to adopt a more liberal or a more strict view of the provisions, as the case may be, as being more consonant with the underlying purpose. But it is not possible to reject words used in an enactment merely for the reason that they do not accord with the context in which they occur, or with the purpose of the legislation as gathered from the preamble or long title. The preamble may, no doubt, be used to solve any ambiguity or to fix the meaning, but it can, however, not be used to eliminate as redundant or unintended, the operative provision of a statute.'

12. To say that the landlord would have to undergo another enquiry of Section 14 and that should not be the object and purpose of the statute, is to refer to notions of propriety and justice entertained by the learned counsel without regard to the language of the statute. When the meaning of the statute Is clear and an execution proceeding instituted after the commencement of the Act is not protected: there is no escape from the conclusion that the order of the Controller under the old Act can only be a valid order which when sought to be executed must satisfy the tests laid down in Section 14 of the new Act. It is not difficult to point out that the Rent Control Act, 1971 is more elaborate enactment opening fresh avenues of protection in favour of tenants. There is a new Section 4 which gives protection to widows; and minor sons for which a specific provision has been made in Section 28. The order of eviction passed by the Controled in this case is sought to be executed after the commencement of the Act and the tenant in possession can only be dispossessed in execution of that order when Section 14 is satisfied. The learned Counsel submitted that the executing court cannot go behind the decree and the order of eviction passed has to be executed as such. He sought assistance from Sita Ram v. Jai Babu, 1973 Rent CR 664, which has approved 1968 Delhi LT 492, We do not dispute this proposition but the facts of the present case are different. In this case the order of eviction may be a valid order for the purpose of Section 14 but before the tenant can be ejected the provisions of that section must be satisfied. The difficulty has arisen because of the lack of jurisdiction in the Civil Court to execute that order. The execution can only be held under Section 23 and for that a fresh order of the Controller under Section 14 is required to be passed.

13. Whatever new facts are pleaded by the tenant, relating to the converience of the landlord and attributable to subsequent vacation of a portion of accommodation can very well be taken up before the Controller in the proceedings under Section 14. It is neither necessary nor desirable by this Court to make any observations on merit in regard thereof. We, therefore, consider that the order of the Controller has to be construed as an order passed for eviction under Section 13 and since it is being executed under Section 23 of the new Act it has to be converted into an order of the Controller under Section 14 and only thereafter it is executable under Section 23.

14. In this view of the matter we allow the appeal and set aside the order of ejectment passed by the learned Senior Sub Judge Simla. We also set aside the order passed in appeal by the learned Distrct Judge, We allow the objections of the tenant-appellant preferred under Section 47 read with Section 151 of the Code of Civil Procedure and hold that he cannot be ejected in these execution proceedings.

15. In view of the special circumstances of the case we leave the parties to bear their own costs all through.


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