Punjab-Haryana High Court
Hans Raj Salig Ram vs L. Niranjan Lal on 26 October, 1951
Equivalent citations: AIR1952P&H159, AIR 1952 PUNJAB 159
JUDGMENT Harnam Singh, J.
1. Counsel for the respondent basing himself on the decision in 'Hari Kishan v. Amar Nath', 52 Punj L R 13, urges a preliminary objection that E. S. A. No. 337 of 1949 is not competent.
2. In 'Hari Kishan v. Amar Nath', 52 Punj L R 13', the Judgment-debtor raised an objection in the execution proceedings that he could not be evicted in execution of a decree passed before or after the commencement of the Punjab Urban Rent Restriction Act, 1047, except in accordance with the provisions of Section 13 of that Act. The plea did not find favour either with the Executing Court or with the Court of the District Judge. Prom the order passed by the District Judge in appeal, Hart Kishan judgment-debtor preferred an appeal in this Court and in the appellate proceedings a preliminary objection was taken by the learned counsel for Amar Nath landlord that the appeal was not competent. In allowing the objection, Kapiir, J., said:
"I am of the opinion that in this case if no second appeal lay from the original matter under Section 13 of Act IV of 1947 no second appeal would lie In execution of the order passed under that Section."
3. From a perusal of the report in 'Harikishan v. Amar Nath', 52 Punj L R 13, it appears that the Judgment in that case was based on the decision in 'Sant Prasad v. Bhawani Prasad' 43 All 403.
4. Now. 'Sant Prasad v. Bhawani Prasad,. 43 All 403, was an appeal under Order XLIII, Rule 1 (u) of Order XLIII of the Code of Civil Procedure provides an appeal from an order under Rule 23 or Rule 23-A of Order XLIII remanding the case where an appeal would lie from the decree of the appellate Court. That being the situation of matters. I do not think that ILR 43 All 403 governs the present case.
5. A similar point arose in 'Kandaswami v. Neelamagam Pillai', AIR. (34) 1947 Mad 112.
In deciding that case Chandrasekhara Aiyar, J., said:
"The order of the Bent Controller has to be executed by the Principal Subordinate Judge as if it were a decree of his Court and this means that for purposes of execution it should be regarded as a decree of the Subordinate Judge. Once we reach this position it is difficult, if not impossible, to resist the applicability of Section 47 of the Code."
6. Indeed, in 'Kandaswami v. Neelamagam Pillai', AIR (34) 1947 Mad 112', Chandra sekhara Aiyar, J., held that if by virtue of a special enactment the order of the Rent Controller is to he treated as a decree of a Civil Court for the purposes of execution, then the right of appeal is attracted under the provisions of Section 47 of the Code of Civil Procedure though the order of the Bent Controller directing eviction is final.
7. In plain English it was said in 'Kandaswami v. Neelamagam Pillai', AIR, (34) 1947 Mad 112, that the order of the Rent Controller is to be executed by the Court as a decree of that Court within Section 2(2) of the Code of Civil Procedure. That being so, an order passed in execution proceedings is appealable under Section 98 of the Code of Civil Procedure and a further appeal from the appellate order will He to the High Court on conditions specified in Clauses (a), (b) and (c) of Section 100 of the Code save where otherwise provided In the body of the Code or by any other law for the time being in force. That this is so, is abundantly clear from the provisions of Section 100 of the Code of Civil Procedure.
(8) Section 17 of the Punjab Urban Rent Restriction Act, 1947, enacts:
'Every order made under Section 10, or Section 13, and every order passed on appeal under Section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court."
Section 17 makes an order passed under Section 13 of the Act a decree passed by a Civil Court "having jurisdiction in the area. There is no provision in the Punjab Urban Rent Restriction Act, 1947, dealing with appeals in execution matters.
9. In construing Section 17 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, Hamaswami, J., (Sinha, J., concurring) said in Brindaban Bihari v. Badri Prasad', AIR (36) 1949 Pat 335 :
"The phrase 'as if such order were a decree passed by such Court' is unqualified, and ought to be properly construed in its context. In my opinion, the order of the 'Munsiff under Section 17 of the Act would be appealable under Section 47, Civil Procedure Code. In the present case an appeal lay to the District Judge from the order impeached, and the second appeal is also competent." Section 17 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, reads: "Every order of the Controller passed under this Act and every order of the Commissioner passed on appeal under Section 18 shall be executed by the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building in relation to which the order to be executed is passed, as if such order were a decree passed by such Court."
10. Now, whatever distinction in matters of detail may exist between the provisions of Section 17 of the Act and Section 17 of the Bihar Buildings (Lease, Bent and Eviction) Control Act. 1947, the principle underlying the decision in 'Brindaban Bihari v. Badri Prasad', AIR (36) 1949 Pat 335 governs the point raised in these proceedings:
11. Considering then that the provisions of Sections 10, 13, 15 and 17 of the Act are textually identical with the provisions of Sections 10, 13, 16 and 17 of the East Punjab Act No. in of 1949 and the question raised in this appeal affects numerous cases, I think that this case should be placed before a larger Bench of this Court for a binding decision on the Questions appealing here-under:
"1. Whether an order deciding a question between the parties to the original proceedings or their representatives and relating to the execution, discharge or satisfaction of the order made under Section 10, Section 13, or Section 15 of the Act is appealable under Section 96 of the Code of Civil Procedure?
2. If the answer to the first question be in the affirmative, whether from an order passed in appeal under Section 96 of the Code a second appeal lies under Section 100 of the Code on grounds mentioned in Clauses (a), (b) or (c) of Section 100 of the Code of Civil Procedure?
12. The case may now be laid before his Lordship the Chief Justice for the constitution of a Division Bench.
13. WESTON, C. J.: This appeal comes before us on a reference made by Mr. Justice Harnam Singh. The learned Judge has referred two questions for decision, these two questions being: 1. Whether an order deciding a question between the parties to the original proceedings or their representatives and relating to the execution, discharge or satisfaction of the order made under Section 10, Section 13 or Section 15 of the Act is appealable under Section 96 of the Code of Civil Procedure?
If the answer to the first question be in the affirmative, whether from an order passed in. appeal under Section 98 of the Code a second appeal lies under Section 100 of the Code on grounds mentioned in Clauses (a), (b) or (c) of Section 100 of the Code of Civil Procedure? The Act referred to by the learned Judge is the Punjab Urban Rent Restriction Act, 1947.
14. We understand that an order to evict the present respondent had been made under Section 13 of the Act by the Controller. The matter was ' not taken in appeal under Section 15 of the Act. The appellant applied for execution under Section 17 of the Act to the Civil Court having jurisdiction. Section 17 provides:
"17. Execution of orders: Every order made under Section 10 of Section 13, and every order passed on appeal under Section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court."
15. The Senior Subordinate Judge. Simla, before whom the matter came under Section 17 of the Act heard certain objections raised by the respondent but disallowed them and made an order for possession. The respondent then filed an appeal in the Court of the District Judge, Ambala, and the District Judge on hearing the appeal allowed it and dismissed the execution application. The appellant landlord then filed the present appeal. When the appeal came before Mr. Justice Harnam Singh a preliminary objection was made that no second appeal lay. Reliance was placed on the judgment of Mr. Justice Kapur which appears in 'HARI KISHAN v. AMAR NATH', 52 Punj L R 13 and undoubtedly is In point. The learned Judge in a case similar to the present upheld the contention taken before him that, as by reason of Section 15 of the Act no second appeal lay in the original matter, no second appeal could lie in execution. It is because of doubt as to the correctness of the decision that the present reference has been made.
16. The scheme of the Act or that part of the Act dealing with the determination of questions arising under the Act clearly is that determination of those questions should not be made by the ordinary Courts. Under Sec. 13 -- the section dealing with eviction of tenants -- It is the Controller who has to decide the matter. An appeal Is provided from his decision by Section 15, but agam this appeal is to lie not to the ordinary Courts but to such appellate authority as the Provincial Government may specify. By Notification No. 1562-Cr-47/ 3228, published in the Punjab Gazette, Extraordinary, dated the 14th of April 1947 at page 337 all District & Sessions Judges in the Punjab were given the powers of appellate authorities for the purposes of the Act in relation to orders made by Rent Controllers under Sections 4, 10, 12 and 13 of the Act. It has been held by a Full Bench of this Court in 'Pitman's Shorthand Acadamy v. B. Lila Ram & Sons', 52 Pun L R 1, that a District & Sessions Judge, while acting in exercise of his appellate powers under Section 15 of the Act, is a persona designate. By Clause (4) of Section 15, the' decision of the District & Sessions Judge in appeal is made final. When, however, any final order under Section 10 or Section 13 has been made either by the Controller or by the District & Sessions Judge in appeal, the scheme of the Act is that further proceedings by way of execution on that order shall go to the ordinary Civil Courts. There is considerable authority for the proposition that, when a matter is made disposable by the ordinary Civil Courts, all the incidents of the ordinary procedure of Civil Courts shall attach to the disposal of that matter, and those incidents of ordinary procedure will, if necessary, include rights of appeal. A case practically on all fours with the present case came before a learned Judge of the Madras High-Court and is reported in 'Kandaswami v. Neelamagam PILLAI', AIR (34) 1947 Mad 112. In nis Judgment the learned Judge quoted the following passage from the speech of Lord Atkinson in 'National Telephone Co. LTD. v. Postmaster-General', (No. 2), (1912) A C 546:
"It 'is not, in substance, in my view, at all a question of giving a right of appeal by implication. It is simply the question of extending the jurisdiction of an existing Court of law, with all its incidents including a right of appeal, to a new matter closely resembling in character those matters over which it has already jurisdiction as a Court of law."
The facts of that case no doubt had little in common with those of the present case but the words of Lord Atkinson are appropriate to the present consideration. In my opinion when it is provided by statute that an order of an authority shall be executed by a Civil Court as if it were a decree of that Court, then when so executing that order the Civil Court will be subject to exactly the same measure of control and correction by the ordinary appellate Courts as it would be in a matter arising in its ordinary jurisdiction in execution.
17. It is not seriously contended before us in fact that no appeal lay from the original order passed in execution by the senior Subordinate Judge at Simla. The main point upon which argument has been directed is the claim that because only one flight of appeal existed from the order made by the Controller, so therefore only one right of appeal can exist from the order of the Civil Court executing the order under Section 17. The argument for the present respondent is based upon analogy asserted to exist between cases such as the present cases under Section 9 of the Specific Relief Act or Section 102 of the Code of Civil Procedure. A number of reports have been cited where it has been held that in these two classes of cases, where no second appeal lay in the suit, then, no second appeal shall he in execution proceedings. The decision, however, do not proceed on any rule of symmetry, but on the view that as the execution proceedings were merely continuation of the suit, so, therefore, the limitations imposed on the right of appeal by Section 9 of the Specific Relief Act and by Section 102 of the Code of Civil Procedure apply equally to matters in execution.
17-a. In eases under the Punjab Urban Bent Restriction Act, 1947, it does not seem to me possible to apply this argument. As I have mentioned, the scheme of the Act is that the orders shall be made not by the Civil Courts but by authorities, namely the Controller and the District & Sessions Judge who are not Civil Courts. Once the order is made, however, the matter is passed to the Civil Courts and execution proceeds as if the order was a decree. If the argument were that the provisions for appeal in the Act itself, namely Section 15 apply both to suits and execution applications, then the present objections clearly must be infructuous. The notification already mentioned confers the appellate powers under the Act on District & Sessions Judges only with regard to orders made under Sections 4, 10, 12 and 13, and no appellate powers against orders made under Section 17 are mentioned in the notification or have otherwise been provided for. The result on this argument would be that there can be no appeal at all from the order of the Civil Court made in execution under Section 17. The proceedings under Section 17 however in my opinion are something entirely separate from the proceedings of the Controller made subject to appeal by Section 15. The proceedings of the Civil Court are not controlled in any way by Section 15, and the right of appeal from orders made under Section 17 must be referable to the ordinary rights of appeal created by Section 96 of the Code of Civil Procedure. The first appeal which was filed in this matter was in fact filed in the District Court of Ambala and not to the District & Sessions Judge of Ambala. I think there is no ground whatever for limiting the right of appeal from orders made under Section 17 by reason of the limitation to the right of appeal against orders made by the Controller. The present case is one for eviction and had the order been a decree of the Civil Court, undoubtedly a second appeal would lie on the grounds mentioned in Section 100 of the Code of Civil Procedure.
(18) I think, therefore, that the answers to the two questions propounded by Mr. Justice Harnam Singh should be in the affirmative in both cases and would return the reference with these answers. The matter should be put up for decision before a single Judge with as little delay as possible. Costs to be costs in the case.
Palshaw, J.
19. I agree.
FINAL JUDGMENT KAPUR, J.
20.: This is a second appeal against an order passed in execution by the learned District Judge, Ambala, allowing an appeal against the order of the Rent Controller and thus dismissing the application for execution and allowing the objections which were raised by Narinjan Lal, the judgment-debtor.
21. On the 11th of June 1942 by a document Ex. R. 1, the landlord gave a lease for five years from 1st March 1943 to 29th February 1948 to firm Hans Raj-Salig Ram of the premises in dispute which is a shop consisting of two portions. One of these portions had been let out to Mani Bam by the original landlord who attorned to firm Hans Raj-Salig Bam and of the other half vacant possession was given. This other half was in April 1943 given on lease to Narinjan Lal by firm Hans Raj-Salig Rani. On the 18th August 1945 the landlord gave six months notice to firm Hans Raj-Salig Bam to vacate on the ground that they had sublet the premises without the consent in writing of the landlord. An application was brought for ejectment but on the 27th August 1947 Mr. Chhakan Lal, Senior Sub-Judge, dismissed the application for eviction of firm Hans Raj-Salig Ram on the ground that the sub-letting by them was previous to the Rent Restriction Act, 1947. Another application was brought for ejectment of firm Hans Raj-Salig Ram on the ground of non-payment of rent but that was dismissed on the 15th March 1948.
22. On the 22nd March 1947 Narinjan Lal, judgment-debtor obtained a lease from the original landlord which was to take effect from the 1st March 1948.
23. On the 14th August 1947, firm Hans Raj-Salig Ram made an application for eviction of Narinjan Lal and on the 24th November by consent of parties an order was passed for eviction and Narinjan Lal was given three months time in which to vacate the premises. On the 15th March 1948 execution was taken out and several objections were taken by the judgment-debtor Narinjan Lal and thereupon the following issues were framed:
(1) Had Salig Ram no locus stand to make this application?
(2) Whether the decree has become in executable for the reasons given in the application of the judgment-debtor, dated 1-4-1948 and statement of his counsel made today?
(3) Is it open to the judgment-debtor to raise this objection?
(b) If so, was the order passed by the Rent Controller for ejectment under Clause 13 of the Act VI of 1947 illegal, 'ultra vires' and without jurisdiction? (4) Is the judgment debtor estopped from raising this objection?
(5) Whether the order dated 7-5-1948, operates as 'res judicata' and the judgment-debtor cannot raise this objection?
23-a. The executing Court rejected the objections and ordered the judgment-debtor to hand over possession to the decree-holder. An appeal was taken to the District Judge who held that Narinjan Lal was not a tenant as defined in the Rent Restriction Act, 1947, that firm Hans Raj-Salig Ram did not agree to the lease by the landlord in favour of Narinjan Lal and were not therefore estopped, that the Rent Controller had no jurisdiction to order eviction of Narinjan Lal and that the order of the Rent Controller could be questioned in execution proceedings. A second appeal was brought to this Court by firm Hans Raj-Salig Ram. A Division Bench of this Court has held that although no second appeal lay in the original proceedings against the order of the District Judge but in execution the course of appeal was the same as in the case of execution of ordinary decrees and therefore a second appeal lies.
24. Counsel for firm Hans Raj-Salig Ram contends that in execution it is not open to the executing Court to go behind the decree and therefore the decree must be executed as it was passed by the Controller. In order to determine this it to accessory to find out what is the jurisdiction of Beet Controller.
25. Under Section 13 of the East Punjab Urban Rent Restriction Act, 1947, a tenant in possession of ft building cannot be evicted in execution of a decree passed before or after the commencement of this Act except in accordance with the provisions of that Section, and in the Act of 1949 the provision is the same. A tenant was defined in the Act of 1947 in Section 2 (i) as follows:
" '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 posses sion after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant; unless with the consent in writing of the landlord." * * * 25-a. Under Section 13 (2) a landlord who seeks to evict his tenant shall apply to the Controller,, for a direction in that behalf, and if the conditions laid down in Section 2 are satisfied the Controller can direct the eviction of the tenant. If the Act of 1949 applied to the parties the only tribunal which could order the eviction of Narinjan Lal would be the Controller and if the Act does not apply, then the Controller would have no jurisdiction to pass the order which was made on the 24th November 1947. It was admitted by both. parties that the sub-tenancy created in favour of Narinjan Lal was not with the consent in writing of the landlord and therefore in my opinion Narinjan Lal 'qua' firm Hans Raj-Salig Ram is not a, tenant as given in the Act of 1947 or the Act of, 1949. Mr. Mukand Lal Puri on behalf of the appellant submitted that because the Punjab Urban Rent Restriction Act of 1941 was repealed by virtue of Section 21 of the Act of 1947 and Narinjan Lal was a tenant within the meaning of the old Act he continues to be a tenant within the meaning of the Act of 1947 also. I am unable to agree with this submission. In the definition Section of the Act of 1947 it is provided:
"In this Act, unless there is anything repugnant in the subject or context * * * * (1) 'tenant' means * * * * Therefore, whenever the word "tenant" occurs ia the Act of 1947, the definition which is given m this Act must apply to that word and we cannot engraft the definition given in another Act to the present Act. Mr. Puri relied on the provisions of the General Clauses Act but I am unable to find that that provision would apply to the word "tenant" as used in the Act of 1947.
26. It may be convenient at this stage to give the definition of landlord also which is given in Section 3 (c) of the Act of 1947 and is as follows: " 'Landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a, tenant who sublets any building or vented land in the manner hereinafter authorised, and every person from time to time deriving title under a landlord."
Taking the words landlord and tenant together as used in the definition Section of the Act of 1947, firm Hans Raj-Salig Ram cannot be termed landlords because they are not "a tenant who sublets any building in the manner authorised under the Act" because sub-letting is not authorised under the Act, and Narinjan Lal is not a tenant within the Act because the building was not rented to him with the consent in writing of the landlord. The jurisdiction of the Controller under Section 13] extends only to persons who are landlord and tenant as defined under the Act and therefore firm Hans Raj-Salig Ram could not make an application to the Rent Controller who had no Jurisdiction-' under the Act.
27. It was then submitted-that the question or Jurisdiction of the tribunal is not a question which can be taken up in execution but I must repel this contention. It was held in 'Abdul Ghani v. Anjuman-i-Imad Qarza Bahami', AIR (29) 1942 Lan 237, that the general rule is that an executing Court cannot go behind the decree but if there is a lack of inherent Jurisdiction in the Court which had passed the decree the executing Court must refuse to execute it as being a nullity and therefore the executing Court can enquire whether the Court passing the decree had inherent jurisdiction to pass it. In that case an order passed by the liquidator under Section 42(2)(b) of the Co-operative Societies Act was sought to be executed as a decree of a Civil Court and it was held that It was competent for the executing Court to enquire if the order had been passed within the limits of his jurisdiction, and if it was without jurisdiction to refuse to execute it. One of the essentials of the liquidator's Jurisdiction under that section is that the person concerned must be a member or a past member of the society and if this condition is not satisfied the liquidator's authority to determine the amount does not exist and an order passed by him would be in excess of Jurisdiction and therefore a nullity.
28. Counsel next relied on 'Raja Ram v. Lehna', AIR (29) 1942 Lah 87, but that was not a case of execution of a decree which was passed by a tribunal without jurisdiction. In 'Jnanendramohan v. Rabindranath', 60 Cal 670 (PC), it was held that the Indian Arbitration Act does not contain any provision for making a decree on an award such as is contained in Schedule II, paragraph 21 of the Code of Civil Procedure. Such a decree, if made, is without jurisdiction and therefore a nullity and it was held by their Lordships that it would be incapable of execution. A Full Bench of the Calcutta High Court has held In 'Gora Chand Haldab v. Prafulla Kumar', 53 Cal 166, that when a decree is made by a Court which apparently had no jurisdiction to make it, the executing Court is entitled to refuse to execute it. Relying on these authorities counsel for the respondent submitted that the order of the Rent Controller dated the 24th November 1947 for eviction of Narinjan Lal was in executable as the order had been passed in regard to persons who are not empowered by the provisions of the Act. In reply to this Mr. Purl contended that this was not a case of apparent lack of jurisdiction. I am unable to agree because the Act of 1947 has been made applicable to certain persons who are defined as landlord and tenant in the Act, itself.
It is only in regard to those persons who have that relationship as given in the Act that the Jurisdiction of the Rent Controller applies. I, there fore, hold (1) that the order of the Rent Controller was without jurisdiction and (2) that it is open to an executing Court to go behind the decree if the order passed by the Rent Controller was with out jurisdiction.
29. Another point was raised that Narinjan Lal had now obtained a lease as from the 1st March 1948 from the original landlord and therefore the Rent Controller's decree cannot be executed as against Narinjan Lal. But it is not necessary to go into this point in view of my findings on the other points raised.
30. In the result this appeal fails and is dismissed with costs.