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Bhagat Ram Vs. Smt. Lilawati Galib - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 17 of 1972
Judge
Reported inAIR1973HP57
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 47; ;Transfer of Property Act, 1882 - Section 105; ;East Punjab Urban Rent Restriction Act, 1949 - Section 3; ;Himachal Pradesh Urban Rent Control Act, 1971 - Section 28(2); ;Himachal Pradesh General Clauses Act, 1968 - Sections 2(21) and 23; ;Himachal Pradesh General Clauses (Amendment) Act, 1969
AppellantBhagat Ram
RespondentSmt. Lilawati Galib
Appellant Advocate P.N. Nag, Adv.
Respondent Advocate S. Malhotra and; K.D. Sood, Advs.
DispositionAppeal dismissed
Cases ReferredRajinder Kumar v. Basheshar Nath.
Excerpt:
- .....tovacate the premises without any condition and which period expired on 5th december 1971. the himachal pradesh urban rent control act, 1971 (hereinafter called the himachal pradesh act) had by then come into force. on 6th december, 1971. the landlady. who had obtained the decree brought out execution proceedings before the senior sub judge for ejectment of the present appellant in pursuance of the order of the high court the judgment debtor filed objection petition under section 47 of the civil p. c. and pleaded that section 14 (1) of the h. p. act barred the execution of the decree as conditions laid down in that section were not satisfied. it was further objected that the act also barred the execution of the decree. it was also averred that the notification did not hold good for.....
Judgment:

C.R. Thakur, J.

1. This Letters Patent appeal is directed against the judgment of the learned Single Judge of this Court in ESA 1/72, dismissing the appeal of Bhagat Ram against the order of the District Judge affirming on appeal the order of the Senior Sub Judge. Mahasu, dismissing the objections of Bhagat Ram judgment-debtor-appellant filed under Section 47 of the Civil Procedure Code.

2. Smt. Lilawati Galib is the owner of the premises known as 'Om Bhawan'. below Lakkar Bazar Simla. Bhagat Ram got the lease of the premises as a tenant on 29th December. 1966. The period under the lease was for one year, due to expire on 6th December 1967. On 15th May. 1967, the landlady gave a notice under Section 106 of the Transfer of Property Act determining the tenancy. The tenant having failed to vacate the premises, she instituted a suit for his eviction on 29th December. 1967. Since the building was completed on 27th December 1966, therefore under the notification, dated 18th August, 1966, issued by the Punjab Government with reference to Section 3 of the East Punjab Urban Rent Restriction Act. 1949 (hereinafter called the Act), the building was exempt from the provisions of the Act for a period of five years from the date of its completion. This period was to expire on 26th December 1971. Hence a regular suit was brought by her on 29th December. 1967, which was decreed by the trial Judge on 25th September, 1970. According to the defendant the building could not be exempt under the aforesaid notification. Against this decree of electment. the appeal of Bhagat Ram to the District Judge was also dismissed on 11th November, 1970. Then a second appeal was filed in this Court which came UP for hearing before me on 4th June, 1971. The parties entered into a compromise. In that it was admitted by the tenant that the building was completed on 27th December. 1966. He agreed to vacate the the premises on or before 5th December, 1971. unconditionaly failing which he was made liable to pay Rs. 10/- per day.

That appeal, therefore was dismissed in view of that compromise and by that judgment and order, the present appellant was allowed six months' period tovacate the premises without any condition and which period expired on 5th December 1971. The Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter called the Himachal Pradesh Act) had by then come into force. On 6th December, 1971. the landlady. who had obtained the decree brought out execution proceedings before the Senior Sub Judge for ejectment of the present appellant in pursuance of the order of the High Court The judgment debtor filed objection petition under Section 47 of the Civil P. C. and pleaded that Section 14 (1) of the H. P. Act barred the execution of the decree as conditions laid down in that section were not satisfied. It was further objected that the Act also barred the execution of the decree. It was also averred that the notification did not hold good for the H. P. Act, as the decree-holder stood deprived of its advantage on 5th November. 1971. It was also pleaded that a fresh' tenancy was created on 4th June, 1971. as a result of the compromise. At any rate, the order of the learned Single Judge was not executable and the decree-holder was merely entitled to a money claim to be calculated at the rate of Rs. 10/- per day till the period the tenant chose to vacate the premises.

3. The executing Court dismissed the objections and so did the District Judge on appeal and on second appeal the learned Single Judge by his judgment. dated 24th April. 1972 dismissed the appeal with costs. Hence this Letters Patent Appeal.

4. The first point raised by the learned counsel for the appellant is that the findings of the learned Single Judge are wrong, inasmuch as he has held that the continuation of the appellant under the terms of the compromise decree, amounted to a licence for six months and thereafter he was a trespasser and there was no relationship of landlord and tenant. According to him. vide this compromise decree a fresh lease had been created and that there was no provision in the lease or the compromise which enjoined that he shall be liable to ejectment. Further by the H. P. Act, which came into force from 5th November, 1971, he was protected and a decree obtained' by the landlady prior to the enforcement of that Act was inexecutable and that if any compromise had been executed against the provisions of the statute, the latter must prevail. Further, he also contended that the period of five years elapsed on 26th December 1971 and thereafter the appellant was not liable to be elected, save in accordance with the provisions of the H. P. Act.

5. The compromise decree passed by this Court in appeal in the regular civil suit is dated 4th June. 1971. Accord-ins to the compromise arrived at the appellant had agreed to vacate the premises on or before 5th December, 1971, unconditionally and in case of default he made himself liable to pay Rs. 10/- per day for each day after that till such time he vacated the premises. By the order it was directed that Bhagat Ram shall be liable to pay damages at the rate of Rs. 10/- per day, till such time he vacated the house. Thus from the aforesaid decree no other conclusion is possible except that he was granted this time to enable him to make his own arrangements and to make the building available to the landlady on or before 5th December. 1971, failing which, he was liable to pay the damages, as stated above. No fresh tenancy can be spelt out either from the statement of the parties or from this order of the Court, whereby the appellant had been granted tune to make his alternative arrangement for his residence and to vacate the building and deliver the same to the respondent.

6. According to Bhawani Lakhamshu v. Himatlal Jamnadas Dani, 1972 Ken CR 33 = (AIR 1972 SC 819) the act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease the common law rule is that he is tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What section contemplates is that there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in Possession of the property after his term is over and on the other side there must be a definite consent of continuation of possession by the landlord expressed by acceptance of rent or otherwise.

7. This consent decree permitted the appellant to continue till 5th December, 1971 and it nowhere states that a new tenancy had been created. The contention of the learned counsel for the appellant is that that very permission of the landlord for his continuation in possession amounted to the creation of a new tenancy and the learned counsel for the appellant wants to interpret this decree in this way because, according to him, the very object of the tenancy legislation is to protect thetenant from harassment of ejectment and from the increase of rent, etc. in these days of growing population when there is paucity of accommodation in the cities. He has relied on Punjab and Sindh Bank Ltd, v. Jagdish Lal. AIR 1972 Puni and Har 144. wherein it is stated that where a deed of compromise can be interpreted in two alternative wavs, the interpretation favourable to the judgment-debtor will be adopted. Be that as it may, but the wording of the present consent decree is quite explicit and unmistakable.

There is no room for any doubt or ambiguity which may be capable of two interpretations. The decree is capable of only one interpretation that the appellant was given a concession to stay in the Premises under the terms of that compromise decree till the 5th December 1971 and after that he was to pay damages at the rate of Rs. 10/- per day. till he vacated the same. Therefore, from this it can be clearly said that there was no intention to create any further tenancy, rather, after the concession was over, the appellant was to pay penalty for his overstay. According to Bai Chanchal v. Syed Jalaluddin 1970 Ren. CR 915 = (AIR 1971 SC 1081) which is a case under the Bombay Rent Restriction Act where there was also a consent decree passed and which was soueht to be executed and a similar plea was taken by the tenant-judgment-debtor, it was held by their Lordships of the Supreme Court:

'Though the judgment debtors were liable to immediate eviction, the decree-holders agreed to let them continue in possession for a period of five years. Since this concession was being granted as a special case, the decree-holders insisted that mesne profits should be paid at a much higher rate so much so that between all the defendants, governed by the two decrees of 8th July, 1946 and 28th February 1949, the amount payable as mesne profits became Rs. 7.314-8-0 per annum which had no relation with the original rent of Rs. 199/- per annum for the entire land fixed by the lease of 1893. In fact, the decree-holders sought further protection by reauiring the judgment-debtors to pay the mesne profits in monthly instalments, and the instalments were so fixed that the mesne Profits due for five years were to be paid within a period of three years. There was the further clause that in case of default of payment of the mesne profits, the defaulting judgment-debtors could be immediately called upon to deliver possession. These terms can, in no way be interpreted as creating a new tenancy constituting the decree-holders as landlordsand the judgment-debtors as their tenants. The terms of the consent decree neither constituted a tenancy nor a licence. All chat the decree holders did was to allow the judgment-debtors to continue in Possession for five years on payment of mesne profits as a concession for entering into a compromise.'

The authority is fully applicable to the facts of the present case and I think in the face of this authority pronounced by their Lordships of the Supreme Court placed in a similar situation, nothing more remains to be added in so far as the terms of this compromise decree are concerned.

8. The cases cited before us O. C. Ganguly v. Kamalpat Singh Dugar AIR 1947 Cal 236: Chartered Bank, Bombay v. Chartered Bank Employees Union, AIR 1960 SC 919: Korath Punnen v. Prameswara Kurup Vasudeva Kurup AIR 1956 Trav Co 1 and Naravan Ram-chandra Patkar v. Gangadhar Keshav Musale. AIR 1955 Bom 175 only laid down the principle that to ascertain whether a document creates a lease or a licence, the substance of the document must be preferred to the form, and the real test is the intention of the parties whether they insisted to create a lease or a licence. Upon the facts before us it cannot be said that a tenancy was created under the terms of the decree which permitted the appellant to continue till 5th December, 1971. From the perusal of the decree it is apparent that there was no intention to create a lease. On the contrary, the respondent was merely granted a concession to continue in Possession of the property for another six months by which date he was to make arrangement for vacating the building and make delivery of the same to the landlady. A close perusal of the statement of Mukhtiar-Am of the landlady shows that he stated in quite unmistakable terms that appellant may be given six months time to vacate the premises.

The appellant, who while pray-ing for six months time for vacating the building stated that for failure to vacate the building within six months he would be liable to pay Rs. 10 Per day. It is stated that rent was Rs. 34/- p. m. whereas the appellant agreed to pay Rs. 10 Per day. This amount was merely in the nature penal mesne profits or damages for over-stay beyond the expiry of six months. The High Court had affirmed the decree of the courts below for ejectment and the appellant had also agreed to vacate the premises after the expiry of six months unconditionally. Therefore, the intention of the parties is clear from their statements In the court that they did not intend to create any fresh lease.

9. The further contention of the learned counsel for the appellant is that there was nothing in the decree which enjoined that he shall be liable to eject-ment after six months. Therefore, in the absence of that the decree was inexecu-table. For this proposition the learned counsel has placed reliance upon Meghrai Sah v. Raibansi Lal, AIR 1958 Pat 546 and Khalli Rath v. Eppili Kamachandra, AIR 1953 Orissa 74. In the Orissa case it was held that:--

'Where in a suit for possession a decree was passed on the basis of a compromise arrived at between the parties wherein it was stipulated that the tenant would vacate after a certain date but what would happen in the event of a violation of this provision was not stipulated or agreed to between the, parties, the decree was not executable merely because the suit itself was for possession.'

Similar was the view taken in the Patna case. The decree in the present case gave a time of six months to the respondent to vacate the premises failing which he was held liable to pay Rs. 10/- per day as damages till he vacated the building. These authorities are distinguishable from the facts of the present case inasmuch as in the instant case if the statements of the parties are read as a whole which amount to a compromise entered into between them it was agreed that the respondent-appellant would vacate the premises after six months unconditionally, and that in case he did not vacate the building he was liable to pay Rs. 10/-per day as damages till he vacated the same. But in so far as the statement of Mukhtiar-Am of the landlady is concerned he had simply stated that he gave him six months' time to vacate the building. The Court on the basis of these statements granted six months' time, but ultimately dismissed the appeal, thus affirming the decision of the Courts below which was a decision for eiectment of the appellant from the Premises. Therefore, it cannot be doubted that the decree is executable.

10. It has further been contended by the learned counsel for the appellant that under Section 2 (i) of the Himachal Pradesh Act. which came into force on the 5th November. 1921, a 'tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant, continuing in possession after the termination of the tenancy in his favour ...............On thebasis of this definition hp wants us to hold that the present appellant who is also continuing in possession after termination of Ms tenancy in his favour is a tenant within the definition of a tenant under the Act. Undoubtedly, the definition of the word 'tenant' is very wide and it embraces within its scope even a person who is 'continuing in possession after determination of his tenancy in his favour.' It will, however, be seen presently that the Himachal Pradesh Act does not apply upon the facts of the present case, and therefore no question can arise of invokine the definition of 'tenant' in that Act.

11. The cases Karnanl Industrial Bank Ltd. v. Satva Niranian Shaw. AIR 1928 PC 227 and Gurupadappa Shiv-lingappa v. Akbar Savad Budan Kadri, AIR 1950 Bom 252 relied upon by the learned counsel for the appellant are not applicable to the facts of the present case. There is no doubt that the parties compromised whereunder six months' time was given to the appellant, but ultimately the. appeal was dismissed and that clearly shows that there was no fresh lease rather, the tenancy had determined and the appellant was given a concession of staving on for six months. Similarly the authority Rajinder Kumar v. Basheshar Nath. (1965-67) Punj LR 974 which says that a tenant continuing in possession after the termination of his tenancy remains a tenant and cannot be treated as a trespasser is also not applicable. The matter is quitp simple. At the relevant time it may be stated that neither the Himachal Pradesh Act nor the East Punjab Urban Rent Restriction Act was applicable to the premises in question. There was a notification issued under Section 3 of the latter Act exempting the building from the operation of the Act and it was in these circumstances that a regular suit had been filed by the landlady for ejectment of the appellant from the premises and she had obtained a decree before the expiry of the exemption period of five years which was to expire on 26th December. 1971.

Further, the decree was sought to be executed at a time when neither of these two Acts were applicable to the premises in question. There is no doubt that the Himachal Pradesh Act of 1971 had come into force with effect from 5th November, 1971' and the execution of the decree was taken out on the 5th December 1971 and the Himachal Pradesh Government had not issued any notification exempting any such buildings from the operation of the Act. Now the further question that arises is whether the notification whereunder the newly constructed buildings were exempt from the operation of the East Punjab Urban Rent Restriction Act had also ceased tobe effective after the repeal of the Punjab Act or it still survived. The contention advanced on behalf of the appellant is that the same had ceased to be effective on the coming into force of the Act. whereas on the contrary the learned counsel for the respondent submits that the same still survives. In order to appreciate this point we have to look to Section 23 of the Himaohal Pradesh General Clauses Act in this connection, which is to the following effect:

'Where any Himachal Pradesh Act is repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification order, scheme, rule, form or bye-law made or issued under the repealed Act shall so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it Is superseded by any appointment, notification, order, scheme rule, form or bye-law made or issued under the provisions so re-enacted.'

We have also to see Section 2 (21) of the Himachal Pradesh General Clauses Act which defines.

''Himachal Pradesh Act' shall mean an Act made by the legislative Assembly of Himachal Pradesh. or an Act of any other State extended to Himachal Pradesh as it existed immediately before Ist November 1966 by the Government of India or an Act of an erstwhile Ruler and in force in any part of Himachal Pradesh or a Punjab Act in force in the areas added to Himachal Pradesh under Section 5 of the Punjab Reorganisation Act. 1966 by virtue of Section 88 of the aforesaid Act.'

Now reading these two Sections it would be obvious that any notification, order, scheme rule, form or bye-law made or issued under the repealed Act shall so for as it is not inconsistent with the provisions re-enacted continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order scheme, rule, form or bye-laws made or issued under the provisions so re-enacted. It is not disputed that there is no new notification issued under the provisions so re-enacted and from the comparison of the Sections of the two Acts it is also clear that there is no inconsistency. Therefore. this notification shall be deemed to continue to apply to the said building till the 26th December, 1971 when five year's period expired from the date of the construction. That being so, the execution proceedings brought out by the landlady were validly taken and thedecree was executable. There was no aues-tion of the decree etc. being barred from execution by the provisions of Section 14 of the Himachal Pradesh Act or Section 13 of the Puniab Act.

12. Learned counsel for the respondent has relied on Section 28 (2) of the Himachal Pradesh Act which, accord-ing to him. saves such decrees from the operation of the Act. We do not find any merit in the argument advanced by the learned counsel. On the contrary we are entirely in agreement with the finding of the learned single Judge when he savs that this section does not assist either the appellant or the respondent because there is no question of saving any proceedings pending under the repealed Act. The proceedings leading to the decree were not initiated under any provision of that Act and there was no question of their being continued under those Provisions. Therefore, the appeal has no merits and is liable to be dismissed.

13. The appeal is dismissed with costs.

R.S. Pathak, J.

14. I agree. Appeal dismissed.


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