D.B. Lal, J.
1. Bhagat Ram has presented this Execution Second Appeal against the order dated 3rd April, 1972 of the District Judge, Mahasu, dismissing his objection under Section 47, Civil P. Code, as a result of which he is likely to be evicted from a house, which is part of a building known as 'Om Bhawan', below Lakkar Bazar, Simla. The decree-holder is Smt. Lilawati Galib who claims to be the landlady of the house. The facts in brief are, that Bhagat Ram was made tenant in the house and a lease was exectited on 29th December, 1966. The period fixed under the lease was for one year which was to expire on 6-12-1967. On 12-5-1967, the landlady gave a notice determining the ten-ancy under Section 106 of the T. P. Act, and the tenant having failed to vacate, instituted a regular suit for his eviction on 29-12-1967. According to the landlady, the construction of the building was com-pleted on 27th December, 1966 and, therefore, under a Notification dated 18-8-1966, issued by the Punjab Government with reference to Section 3 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter read Rent Restriction Act of 1949), the said building was exempt from the provisions of the said Act for a period of 5 years from the date of its completion. This period of 5 years expired on 26th December, 1971. Therefore, she brought a regular suit of ejectment after determining the tenancy and this suit was decreed by the trial Judge on 25th September, 1970. There was a controversy as to the actual date of completion of the construction and it was contested that the building could not be considered exempted under the aforesaid Notification. After the decree of ejectment was passed by the trial Judge, the judgment-debtor Bhagat Ram filed his first appeal before the District Judge, but there too he failed and his appeal was dismissed on 11-11-1970.
Thereafter, he came in second appeal before the High Court on 4-6-1971. The parties entered into a compromise before the High Court and the said compromise has been quoted in extenso in the judgment of the learned Single Judge. It was admitted by the tenant that the construction of the building was completed on 27th December, 1966. However, he agreed to vacate the premises on or before 5th December, 1971 'unconditionally'. Failing that, he made himself liable to pay Rs. 10 per day till such time he vacated the premises, which payment was interpreted by the learned Single Judge, who decided that appeal, as damages for use and occupation of the house. It was also specifically ordered by the learned Single Judge that the appeal was deemed dismissed and six months period was allowed to the tenant to vacate the premises 'without any condition'. The period of six months expired on 5th December, 1971. But before this period expired, on 5th November, 1971, the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter to be referred as 'Rent Control Act of 1971') was enforced. On 6th December, 1971, the decree-holder sought to execute the decree of the learned Single Judge by seeking ejectment of the tenant. At that stage the present objection was filed under Section 47, Civil P. Code, wherein it was pleaded that Section 14 (1) of the Rent Control Act of 1971 very much barred the execution of the decree, as conditions laid down in that section were not satisfied. It was further objected that the Rent Restriction Act of 1949 also barred the execution of the decree.
While the objection was argued before the executing Court, a variety of other grounds were also taken. It was stated that the Notification did not hold good for the Rent Control Act of 1971 and the decree-holder became deprived of its advantage on 5th November, 1971. It was stated that Section 28 (2) of the Rent Control Act of 1971 rather brought to bear upon Section 13 of the Rent Restriction Act of 1949 and that further barred the ejectment of the tenant. It was also pleaded that a new tenancy was created on 4th June, 1971 as a result to that 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 up till the period the tenant chose to vacate the premises. It was stated that the consent decree could not be interpreted against the provisions of the statute and hence was a nullity. As I have stated before, these objections were not specifically raised in the memorandum under Section 47 of the Civil P. Code. However, these objections were admitted to be raised by the learned executing Court as well as the learned District Judge, who heard the first appeal against the order of the executing Court and, therefore, in this second appeal as well, I extended the concession to the judgment-debtor and they were permitted to raise these objections.
2. The executing Court decided the objections against the judgment-debtor. Thereafter, the first appeal was filed before the District Judge and he has also dismissed the appeal. It has been held by the Courts below that the decree was executable and that Section 14 (1) of the Rent Control Act of 1971 was not applicable. Similarly, it was held that Section 13 of the Rent Restriction Act of 1949 too was not applicable. The benefit of Section 28 (2) of the Rent Control Act of 1971 was extended to the decree-holder and it was held that the proceedings, which had started as a result of the regular suit and were pending because execution was being sought of the decree, remained unaffected either by Section 13 of the Rent Restriction Act of 1949 or by Section 14 (1) of the Rent Control Act of 1971. It was further held that the judgment-debtor was estopped from denying the terms of the decree and that he was liable to be ejected. It was held that a new tenancy did not come into existence. In the result it was decided that the decree-holder could execute the decree and the tenant was likely to be ejected.
3. The tenant, Bhagat Ram, has come up in the second appeal being aggrieved of the decision of the learned District Judge. On his behalf, almost all the pleas, which I have cared to discuss above, have been pressed into service. The decree-holder-respondent has controverted al-most all of such pleas. It could not, however, be controverted by the parties that the construction of the premises was completed on 27th December, 1966, because that was so categorically stated before the learned Single Judge in the High Court,
4. It was urged in the foremost On behalf of the appellant that the order of the learned Single Judge dated 4th June, 1971, did really spell out a fresh lease in favour of the tenant. The argument is based on the contents of that compromise as well as on the order of the Court which emerged out of it. It was stated in the compromise that the tenant was to vacate the premises on or before the 5th December, 1971, and that in case he failed to do so, he was liable to pay Rs. 10 per day for the period falling beyond 5th Decembe, 1971, till such time as he vacated the premises. Since no period was fixed for vacation says the appellant it should be considered that a tenancy was created and unless such a tenancy was duly extinguished, ejectment could not be effected. The learned Single Judge, while making the order, no doubt mentioned that he was dismissing the appeal and that Rs. 10 per day would be considered as damages for use and occupation of the house. At the same time, the judgment-debtor had sepcified that he would vacate the premises 'unconditionally'. The Court similarly ordered that he would vacate the house 'without any condition'. These are the terms of the compromise and the contents of the order and it is urged that a fresh lease can be inferred in favour of the tenant.
It is abundantly clear that the judgment-debtor agreed to vacate unconditionally, which, to my mind, means nothing but his assertion that he would not claim a fresh tenancy in his favour. Apart from this, he was required to pay damages for each day he remained in unlawful occupation of the house. This again indicates that fresh tenancy was not created. Although the judgment-debtor himself did not denominate Hs. 10 per day as damages, yet that was the interpretation given by the learned Single Judge and rightly so, because the amount could not be interpreted as anything else but by way of penalty for over-staying in the house. It is manifest the vacation of the house was under contemplation and that is why a specific period was provided in the order. Otherwise, there would have been a simple clause of enhancement of rent and no period would have ordinarily been prescribed for the lease as such. Because damages were to be levied, the compromise was that the tenant would vacate on or before the specified date.
Above all, the decree of the Court below was affirmed and the appeal was dismissed, which proved beyond doubt that the decree was maintained and obvi-ously this decree was for delivery of possession. To ascertain whether a document created a licence or lease, the substance of the document must be preferred to the form. The real test is the intention of the parties, whether they intended to create a lease or a licence; if the document creates an interest in the property, it is a lease; but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; circumstances may be established which negative the intention to create a lease. The period of six months granted under the compromise to the judgment-debtor for contimiation of his possession does not militate against the construction that the compromise only created a licence and the decree was executable, because the said licence was revoked by efflux of time and possession has to be delivered to the decree-holder. In this connection, reference can be made to Konchada Ramamurty Subudhi v. Gopinath Naik, AIR 1968 SC 919. In that case even the word 'rent' was used in the compromise and still their Lordships did not spell out a fresh lease, but considered that only a licence was intended. For the reasons mentioned above, I have no hesitation in holding that a fresh lease was not created in the instant case.
5. On behalf of the appellant, reliance was placed on Khalli Rath v. Eppili Ramchandra, AIR 1953 Orissa 74. In that case, a consent decree was obtained and one of the conditions of the compromise was that the tenant would pay rent at the rate of Rs. 5 per month for one year 'as tenant', and that at the end of one year, he would vacate the house without notice. In that context it was held that a new lease was created and the provisions of the Rent Control Act were made applicable. The case before me is based on entirely different facts. Here, the payment of Rs. 10 per day was not intended to be rent nor it was stipulated even impliedly that the decree for possession would not be executable. Rather the appeal was dismissed and the decree for possession was restored. Therefore, that case would not help the appellant. It would also be wrong to submit that the decree was executable only for a money claim at the rate of Rs. 10per day. It is rather executable not only for the money claim but also for ejectment of the appellant.
6. It is further contended on behalf of the appellant, that the consent decree could not militate against the provisions of Section 13 of the Rent Restriction Act of 1949 or Section 14 of the Rent Control Act of 1971. On the other hand, it was pleaded on behalf of the respondent that the tenant could contract out of the provisions of those Acts. The situation in which the appellant was placed need be reckoned. The Notification, whereby the landlord claimed exemption from the provisions of the Act, was very muchin force on 4th June, 1971. There was some controversy as to whether this Notification even prevailed on 5th November, 1971 when the Rent Control Act of 1971 came into operation. It is evident, the contents of the Notification were not contrary to any provision of the Rent Control Act of 1971. Under Section 3 of that Act, the State Government could direct, by Notification, that the provisions of the Act would not apply to any class of building. Therefore, the Notification, which was issued under a similar provision contained in the Rent Restriction Act of 1949, could as well be issued under the Rent Control Act of 1971. There was no inconsistency in the provisions of the two Acts and, in my opinion, the Notification held good even for the purpose of the new Act, namely, the Rent Control Act of 1971. Therefore, this building remained exempted from the operation of the Act up till 26th December, 1971, although the tenant contracted to vacate it even before that date, i.e. on, 5th December, 1971.
It is abundantly clear that up till 26th December, 1971, the tenant could be thrown out of possession. He was liable to be thrown out even on 4th June, 1971 when he arrived at that compromise before the learned Single Judge of the High Court. He had very much affirmed that the building was completed on 27th December, 1966 and thereby admitted that it was exempted from the provisions of the Rent Restriction Act of 1949. In order to safeguard his interest and obviously in order to save his immediate ejectment, he entered into that compromise. He definitely got six months period further to stay in the building and nence the execution of the decree was postponed and in return the decree-holder was to get damages for use and occupation, for the period falling beyond 5th December, 1971. Therefore, it was a case of mutual give and take, and in the circumstances, the tenant could be stated to have contracted out of the provisions of the Rent Restriction Act of 1949, which would have ultimately come into operation after 26th December, 1971 when the period of 5 years expired. It could not be stated that any rule of public policy was transgressed or that a disobedience of law was perpetrated. In fact, both the Acts were not applicable on 4th June, 1971, although it might be stated that in the mind of the tenant it was very much there that on 26th December, 1971, when the 5 years' period would expire, Section 13 of the Rent Restriction Act of 1949 would become very much applicable. He cannot be permitted to say that he obtained the postponement of execution which was definitely to his advantage and now in return he should be permitted to seek help of the provisions contained in Section 14 (1) of the Rent Control Act of 1971.
7. It has to be understood that there is nothing in the Rent Control Act of 1971 and for that matter even in the Rent Restriction Act of 1949, which prohibits a tenant from foregoing the advantage which he has to get by compelling the landlord to comply with the conditions laid down in Sections 14 and 13 of the respective Acts. If any individual tenant so chooses to forego the advantages, and especially in a situation where he avoids a predicament and gets definite advantage in lieu of giving up the distant advantage of that provision of either of the Acts, he can very well do so and can certainly contract out of the provisions of those Acts. A very much similar situation arose in Lachhoomal v. Radhey Shyam, 1971 Ren CJ 340 = (AIR 1971 SC 2213), where a landlord did not elect to take the benefit of the exemption of similar nature under Section 1-A of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, and entered into a deed to that effect, their Lordships of the Supreme Court held that the landlord could contract out of the provisions of the statute and the argument that the election of the landlord has been contrary to a specific provision of the statute and hence void, was not upheld. The following observations of their Lordships Would be revealing in this respect:
'Held that the general principle is that every one has a right to waive and to agree to waive the advantage of law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition, it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy. Section 1-A of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, does not employ language containing a prohibition against or impose any restriction on a landlord and a tenant entering into an agreement that they would not be governed by that section. The words 'if permitted, it would defeat the provisions of any law' in Section 23 of the Contract Act refer to the performance of any agreement which necessarily entails the transgression of the provisions of any law. What makes an agreement, which is otherwise legal, void is that its performance is impossible except by disobedience of law. Clearly no question of illegality can arise unless the performance of the unlawful act was necessarily the effect of an agreement. Section 1-A of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, was meant for the benefit of owners of buildings which were under erection or were con-structed after January, 1951. If a particular owner did not wish to avail of the benefit of that Section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage of the benefit comtemplated by that Section. No question of policy, much less public policy, was involved and such a benefit could always be waived'.
8. In the instant case, as I have stated before, there is no prohibition laid down in the provisions of the Act which might restrict the tenant from giving up the benefit which he gets under Section 14 of the Rent Control Act of 1971. It is certainly a case of an individual tenant who wanted to avoid the present calamity and entered into a compromise to secure advantage. In Jamna Dass v. Smt. Hasanu, 1969-71 Pun LR (D) 26 the learned Judge was considering a compromise Whereby the tenant was given one year's time for vacating the shop and it was stipulated that thereafter he would vacate it and hand over possession to the owner, The plea was taken that the compromise militates against the provisions of the statute. It was held that cases of compromise in proceedings for vacations of tenants have to be considered on their own merits, as a tenant in such proceedings may be expected to know his interests and be able to safeguard them, and except when he has been subjected to fraudulent devices or when he and the Court have been over-reached by some unscrupulous landlord, a voluntary compromise ordinarily deserves to be acted upon and upheld by the Courts. It may constitute a lawful foundation for orders of vacation. If the tenant in his pleadings admits landlord's claim and does not contest it and enters into a compromise, which is not induced by unlawful pressure or fraudulent devices, then such a compromise would be acceptable in law. I must, therefore, hold that the appellant in the present case contracted out of the provisions of the statute. This he could legitimately do and the compromise having been brought about with free consent and without fraud and without any unlawful gain to the landlord must be given due weight and is enforceable. The learned counsel for the appellant relied upon two cases reported in Forozi Lal Jain v. Man Mal, AIR 1970 SC 794 and Smt Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838. In both these cases their Lordships were considering the language used in Section 13 of the Delhi and Aimer Rent Control Act. 1952. That section stood in the following terms:
'Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favourof the landlord against any tenant (including a tenant whose tenancy is terminated).'
9. It was found that the Court, without applying its mind as to whether conditions laid down under Section 13 of that Act were fulfilled, proceeded to record the compromise between the parties and the decree in terms of the compromise was passed whereby the tenant was to be ejected. It was held that the very decree could not be passed by the Court in view of the language used in S. 13 of that Act and the decree was held a nullity. It is abundantly clear that the two cases are based on a totally different footing. The language of Section 14 of the Rent Control Act of 1971 is very much different and there is no prohibition for the passing of the decree, rather the prohibition is for the execution of such decree. Moreover, on 4th June, 1971, when the present decree was passed bv the High Court, neither of the two Acts were applicable to this building. Therefore, the compromise decree could very well be passed and could not be held to be a nullity. For the reasons stated above, the tenant could contract out of the provisions of either of the two Acts as that was to his advantage.
10. It has been then urged on behalf of the appellant that Section 14 did actually apply after 26th December, 1971, when the period of 5 years under the notification had expired. According to the very terms contained in S. 14 (1), whatever decree was passed, it was not executable except in accordance with the provisions of that section. For this, the reply of the respondent is that he was neither 'landlord' nor the appellant his 'tenant' and that in any case he was not tenant in possession, which necessarily means lawful possession. On the other hand, he was paying damages for use and occupation and could be classified as a trespasser. If I look up the definition of tenant contained in Section 2 (i) of the Rent Control Act of 1971. it becomes explicitly clear that the tenant is required to pay 'rent' to the landlord. In this case he is not paying rent but paying damages for use and occupation. There is no contractual relationship of landlord and tenant. In fact, the tenancy was lawfully determined and a decree of ejectment was granted. Therefore, whatever status the appellant got was of a licensee up-till the 5th December, 1971 and thereafter of a trespasser. He was never made a tenant and he did not pay rent. Naturally, the respondent was not relegated to the status of a landlord. The appellant could not be considered tenant in possession of a building within the meaning of Section 14. The word 'possession' naturally signifies lawful pos-session. The possession of a trespasser could not be a possession of a tenant so as to attract Section 14 (1).
In State of Punjab v. British India Corporation Ltd., AIR 1963 SC 1459, at page 1463, para 15, their Lordships considered the meaning of 'rent' and held that the said expression sometimes is used in a wider sense meaning thereby any payment made for the use of the land or building including payment made by a licensee, and sometimes used in narrow sense when it means payment made by tenant to landlord for property demised to him. In my opinion, the expression 'rent' has been used in Section 14 in a narrow sense and 'it would only mean payment made by a tenant to landlord for the use of the building which has been demised in his favour under a lease which, after determination of such tenancy, is converted into a statutory lease for the purpose of that section. The learned counsel for the appellant referred to Rajinder Kumar v. Basheshar Nath, 1965-67 Pun LR 974 for the proposition that a tenant continuing in possession after the termination of his tenancy remains a tenant for the purpose of Rent Restriction Act of 1949 and can be ejected only in accordance with its S. 13.
Similarly, the learned counsel referred to Matu Ram v. Ram Ditta, (1966) 68 Pun LR (SN) 41, p. 21, which was a case where a tenant continued in possession after the expiry of the period fixed undent notification of Section 3 of the Rent Restriction Act of 1949 and was held to be a statutory tenant so that he could only be evicted after following the conditions laid down under Section 13 of that Act, No one disputes the validity of these pronouncements, but in these two cases possession continued with the tenant as such and he was not converted into a trespasser as a result of any compromise arrived at between the parties. The present case is not falling in that category. Here, the compromise was brought into existence. The tenant was likely to be ejected and he contracted out of the provisions of the statute. He chose to remain in possession and his possession was that of a trespasser after a certain date. Therefore, the facts of the present case are different and no advantage can be given to the appellant of these two cases.
11. In the last it has been contended both by the appellant as well as the respondent, of course on different footings, that Section 28 (2) of the Rent Control Act of 1971 would come to their aid, in the case of the appellant by giving him the benefit of Section 13 of the Rent Restriction Act of 1949 and in the case of the respondent by giving him the benefit of the decree that has been passed under the general law of the land.To my mind, both the arguments are futile being devoid of any merit. Section 28 (2) is a saving clause which is always indicated to exempt something from immediate interference or destruction; but where the main enactment is clear, a saving clause can have no repercussion on the interpretation of the main enactment so as to include in its scope what clearly falls out of its terms. Under Section 28 (2). all suits and other proceedings under the Rent Restriction Act of 1949 which were pending at the commencement of the Rent Control Act of 1971 have been made to continue and are to be disposed of in accordance with the provisions of the old Act, as if the new Act had not been passed. On 5th November, 1971, when the new Act came into force, the exemption period was continuing. On 6th December. 1971. the execution application was filed and although it could be held to be a continuation of the proceeding under the suit, such pending proceeding could not be continued in accordance with the provisions of the old Act for the simple reason that these proceedings never emerged out of any single provision of that Act. The effect of the notification was that none of the provisions of the Rent Restriction Act of 1949 were applicable to this building.
Therefore the proceeding was never initiated under any provision of that Act and hence there was no question of their being continued within those provisions, which was the obvious intention of Section 28 (2) of the Rent Control Act of 1971. What has been excluded from the scope of that Act cannot be included in it by the help of Section 28 (2). Therefore, Section 13 of the Rent Restriction Act of 1949 never came into operation in relation to this decree. It cannot be brought into operation either by the help of the saving clause. Similarly, the contention of the respondent cannot be accepted when he concluded by the help of Section 28 (2) that the decree passed under the general law continued, as the provisions of such law got protection under the saving clause. The language 'in accordance with the provisions of the said Act' is amenable to a clear interpretation, meaning thereby that the provisions of the Rent Restriction Act of 1949 were alone applicable and not the provisions of any other Act including any general law relating to tenancies.
12. In this connection, the learned counsel referred to the terms 'suit' and 'Court' used in Section 28 (2) and said that the proceeding before the Rent Controller was neither a suit nor the Rent Controller could be considered a Court. There are certain provisions in that statute which confer powers of a Civil Court upon the Rent Controller, although forlimited purpose. That would explain why the word 'Court' was used in the provision. The word 'suit' cannot be stated to have been utilised in any artistic sense. It may have been a case of inelegant drafting. The word 'suit' used in the provision should be considered in a generic sense so as to include every type of proceeding that may be found pending before the Rent Controller. At any rate, by any stretch of imagination, it cannot be inferred that suits under general law were also protected under Section 28 (2) and that a decree passed under a general law, which has remained unexecuted, would not be affected by the provisions of Section 14 of the Act. In the instant case, however, the conditions are different and the appellant neither remained a tenant nor the respondent the landlord. He was not paying rent and was only a trespasser paying damages for use and occupation. It is for this reason that Section 14 does not come into play and no help can be taken from Section 28 (2) by either party in furtherance of his case.
13. I must, therefore, hold that the decree passed by the High Court in second appeal was executable decree. It is not circumscribed by the provisions of Section 13 of the Rent Restriction Act of 1949 or Section 14 of the Rent Control Act of 1971. It is a decree passed against a trespasser and is executable as such. The appellant can be elected as a result of execution of such decree.
14. In the result the appeal fails and is dismissed with costs to the respondent.