Kishan Lal v. Shyam Lal represented by Kedar — 1989 DIGILAW 328 (RAJ)

I.S. ISRANI, J.—This revision petition has been referred by learned Single Judge for decision to larger bench and has formulated following two questions: 1. Whether a decree for eviction passed prior to the applicability of the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as the Act) for a particular area can be executed by the Executing Court and if so in what circumstances ? 2. In case, it is found that it is permissible for the Executing Court to proceed with the execution of such a decree and to hold an inquiry about the satisfaction of the grounds contained in section 13 of the Act, what is scope of such an inquiry ? 2. The brief facts out of which the present revision petition has arisen are that Shyam Lal owner of a shop situated in village Chhipa-Badod let out his shop on rent to the petitioner Kishan Lal. Shyam Lal filed a suit for eviction of the petitioner on January 4, 1972 when the provisions of the Act were not applicable to Chhipa-Badod. This suit was dismissed by the Munsif Chhabra on December 12,1974. Shyam Lal filed an appeal in the court of Additional Dist. Judge, Baran who decreed the suit vide his judgment dated November 27,1975. The petitioner, therefore, preferred Second Appeal in this Court during pendency of which Shyam Lal died. Since the legal-representatives of deceased Shyam Lal were not on record the appeal of the petitioner abated on May 15,1981. In the meanwhile Shyam Lal had also filed an application on February 3,1976 for execution of the decree of eviction in the court of Munsiff and Judicial Magistrate Chhabra. However, further proceedings in the execution petitioner were stayed by this Court in the second appeal. Shyam. Lal died on May 14, 1980 during the pendency of the execution petition. Thereafter the legal representatives of Shyam Lal who are also non-petitioners in this revision-petition, filed another execution petition No. 4/81. Both these execution petitioners were dismissed on the ground that the legal representatives had not obtained succession certificate. After obtaining succession certificate the legal representatives filed fresh execution petition No. 1/1982. In the meanwhile the provisions of the Act become applicable to Chhipa-Badod. The warrant for possession and attachment was issued in the said execution-petition. Both these execution petitioners were dismissed on the ground that the legal representatives had not obtained succession certificate. After obtaining succession certificate the legal representatives filed fresh execution petition No. 1/1982. In the meanwhile the provisions of the Act become applicable to Chhipa-Badod. The warrant for possession and attachment was issued in the said execution-petition. On May 15,1982 objections were filed on behalf of the petitioner that the decree for eviction was in-executable in view of the provisions contained in Sections 13 and 26 of the Act. Learned Munsiff & Judicial Magistrate, Chhabra vide his order dated July 29, 1982 rejected the objections holding with the provisions of Sections 13 and 26 of the Act were not applicable to the decree as they can be applicable only to such decrees which were passed before coming into force of the operation of the Act in the year, 1950. Aggrieved by this order the present revision petition has been filed by the petitioner. 3. The contention of Shri K.K. Sharma, learned counsel for the petitioner is that in view of Section 13 of the Act the decree for eviction passed in favour of non-petitioners cannot be executed and that Executing Court cannot go beyond the decree nor can it amend the same. It is, therefore, urged that the decree-holders should file a fresh suit for eviction on any of the grounds mentioned in sec. 13 of the Act to obtain any decree for eviction against the petitioner. It is pointed out that sec. 26 of the Act clearly provides that no decree for eviction of a tenant from any premises in an area to which this Act extends for the time being, passed before the date of commencement of this Act shall in so far as it relates to the eviction of such tenant, be executed against him, except on any of the grounds mentioned in sec. 13 and under the circumstances specified in the Act. It is, therefore, contended by the learned counsel that since at the time when the decree for eviction of the petitioner was passed the Act was not in force in Chhipa-Badod, none of the grounds mentioned in sec. 13 were considered and, therefore, the decree is in-executable and in-valid. Reliance has been placed on decision of this Court in Kanhaiya Lal vs. Nemi Chand (1). 13 were considered and, therefore, the decree is in-executable and in-valid. Reliance has been placed on decision of this Court in Kanhaiya Lal vs. Nemi Chand (1). It is also urged by the learned counsel that the above decision of this Court is in consonance with the law laid down by other High Courts and has referred to the decision of the Madras High Court in Chand Basha vs. Pyari Bai (2) and of Patna High Court in Mohammad Ismail vs. Suraj Narain Pd. (3). It is also contended that "satisfaction of the Court", does not mean satisfaction of the Executing Court but of a Court where the inquiry in details regarding existence of any of the grounds mentioned in sec. 13 of the Act is made. It is also submitted that even if the interpretation is given that the satisfaction of Executing. Court is required that the petitioner shall have no right of appeal against the same. It is further submitted that sec. 14 of the Act regarding comparative hardship shall have also to be considered and evidence has to be recorded on this aspect of the matter also as no such material is evidently in-existence on the case file since the proceedings were filed while the Act was not in the force in Chhipa-Badod. The learned counsel has also referred in AIR 1987 SC 248 , AIR 1975 (Raj.) 167 , 1972 WLN (UC) 873 and AIR 1954 (Raj.) 43. It is further urged by the learned counsel that Act has been enacted for the benefit of tenants and should be interpreted in such a way that the benefit is extended to the tenants. 4. Shri B.P. Agarwal, learned counsel for the non-petitioners contends that the provisions of secs. 13 and 26 of the Act could not be made applicable to the execution of such decree. It is submitted that the decree of eviction came into existence before provisions of sec. 13, became applicable in the area where the shop in suit is situated. It is further submitted by the learned counsel that sec. 2 shall not be applicable since the decree of eviction had already been passed before the Act was extended. It is also pointed out that in Section 26 the word "commencement" used does not mean "extention". 13, became applicable in the area where the shop in suit is situated. It is further submitted by the learned counsel that sec. 2 shall not be applicable since the decree of eviction had already been passed before the Act was extended. It is also pointed out that in Section 26 the word "commencement" used does not mean "extention". The learned counsel points out that in Section 2 of the Act words "commencement", and "extention" have been used to have different meanings. According to the learned counsel what is required is satisfaction of the Executing Court on the basis of the material on record and the landlord is not required to file fresh proceedings as contended by the petitioner. Reliance has been placed in 1988(4) S.C.C. 248, 1987 (4) S.C.C. 382 , AIR 1966 S.C. 1003 , I.L.R. 1958 (Raj.) 994, I.L.R. 1952 (Raj.) 290. 5. We have heard learned both the counsel and have also gone through the order of the trial court. 6. Before we proceed to consider the arguments of both the parties, it will be necessary to see some of the provisions of the Act. Section 2 provides that the Act shall extend to whole of the State of Rajasthan. Sub-section (2) of Section 2 of the Act further provides that Section 1 to 4 and Section 27 to 31 shall come into force at once and the remaining provisions thereof shall extend to such areas in the State of Rajasthan and shall come into force therein with effect from such date as may be from time to time notified by the State Government in official-gazatte. The Act was enacted as a beneficial legislation to protect the rights of tenants keeping in view acute shortage of accomodation in Rajasthan. Section 13(1), therefore, provides that "notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore, to the full extent allowable by this Act, unless, it is satisfied............"This section provides certain conditions to be fulfilled/proved before an order/decree for eviction of a tenant can be passed under the provisions of this Act which includes defaults, subletting, personal bonafide, necessity etc. Section 26 is regarding execution of decree for eviction. Section 26 is regarding execution of decree for eviction. It provides "No decree for the eviction of a tenant from any premises in areas to which this Act entends for the time being, passed before the date of commencement of this Act shall in so far as it relates to the eviction of such tenant be executed against him, as long as this Act remains in force therein, except on any of the grounds mentioned in Sec. 13 and under the circumstances specified in the Act. "Thus Section 13 puts restrictions on execution of decree for eviction and lays down that unless conditions specified in this section are satisfied the executing court shall not evict any tenant by way of execution of a decree for eviction passed against any tenant. Sec. 27 refers to the provisions made for pending matters in the Courts. Sub-sec. (1) lays down that "In all suits for eviction of tenants from any premises in areas to which this Act has been extended under sec. 2, pending on the date specified in the notification under that section, no decree for eviction be passed except one or more of the grounds mentioned in section 13 and under the circumstances specified in this Act". Sub-sec. (2) lays down that "Except as is otherwise provided by or under this Act, all cases which are, at the commencement thereof in any area to which it has been extended under sec. 2, pending before a Controller or any other authority appointed by or under any law in force therein immediately before such commencement, shall notwithstanding anything to the contrary in this Act, be determined and disposed of by the Magistrate in accordance with such law." 7. In H. Shiva Rao vs. Cecillia Pereira (4), it was observed by their Lordships of the Supreme Court that rent control legislation are beneficial to the tenant and restrictive of the rights of the landlord. Whether this is the best way to meet the problem of finding habitats for growing number of people is another issue, and whether or not the problem could not be met by another way is also" another question. It was further noted that in finding the literal meaning of the expression in the task of construction, if the expressions are ambiguous then the construction that fulfils the object of the legislation must provide the key to the meaning. 8. It was further noted that in finding the literal meaning of the expression in the task of construction, if the expressions are ambiguous then the construction that fulfils the object of the legislation must provide the key to the meaning. 8. Sub-Section (1) of Section 2 provides that the Act extent to whole of the State of Rajasthan. Sub-Section (2) provides that Sections 1 to 4 and 27 to 31 of the Act shall come into force at once. It further provides that the remaining provisions thereof shall come into force to such areas in the State, w.e.f. such date as may be notified by the State Government in official gazette from time to time. The contention of Shri B.P. Agarwal, learned counsel for the non-petitioners is that since Section 1 to 4 and 27 to 31 extended to whole of the State of Rajasthan, therefore, Section 27 was already applicable to Chhipa-Badod the area where the disputed shop is situated. Further contention of the learned counsel that on this ground provisions of Section 26 of the Act are not applicable to the case under consideration has no force because it is clearly provided under Section 26 that no decree for eviction of a tenant passed before the date of commencement of this Act in so far as it relates to the eviction of such tenant be executed against him except on any of the grounds mentioned in Section 13 of the Act. 9. Admittedly the provisions of the Act were extended to Chbipa-Badod during the pendency of the second appeal before this Court and when the execution proceedings were pending in the trial court. We do not find that the respondent/landlord can derive any advantage by making any distinction between the words "commencement" and "extension" as used in particular provisions under the Aft so far as the present case is concerned. We are, therefore, of the opinion that provisions of Section 26 and Section 13 shall be applicable to the matter under consideration. We do not find that the respondent/landlord can derive any advantage by making any distinction between the words "commencement" and "extension" as used in particular provisions under the Aft so far as the present case is concerned. We are, therefore, of the opinion that provisions of Section 26 and Section 13 shall be applicable to the matter under consideration. A similar matter came under consideration before Division Bench of this Court in case of Ramji Lal vs. Ramkrishan (5); this was a matter relating to sub-clause (e) of Sec. 2 of the Act as it existed at the relevant time which contained a proviso that nothing in the Act shall be applied "to any premises the construction of which was completed on or after the 1st June, 1951 for a period of seven years from the date of such completion". The Act was applicable to the town of Hindaun but because of clause (e) of the proviso the provisions of the Act did not apply to the shop in suit for a period of 7 years from the date of its completion. After the expiry of 7 years, the provisions of the Act came into force. It was held by this Court that as soon as the provisions of the Act became applicable Section 27 came into play. It was further held that Section 27 was enacted as a precaution to apply to pending matters. Postponement of the applicability of Section 13 should not be urged, once the Act had come into force. It was, therefore, held that the tenant was protected and could not be dispossessed except under the circumstances enumerated in Sec. 13. Similar view was taken in case of Narayan Chand vs. Krishna Kumar (6) and Umed Ram vs. Rameshwar Prasad (7). In the authority of Nand Kishore Marwah vs. Samundri Devi (8), the matter under consideration of the Apex Court was restriction on the institution of suit under Sub-Section (2) of section 2 and Sec. 20(1) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the U.P. Act.). The main question agitated before the Apex Court was whether during the pendency of litigation even if 10 years expired the restriction under Section 20 will be attracted as the suit had been instituted within 10 years, therefore, this authority is of no help to the respondent. The main question agitated before the Apex Court was whether during the pendency of litigation even if 10 years expired the restriction under Section 20 will be attracted as the suit had been instituted within 10 years, therefore, this authority is of no help to the respondent. Even if the decree for eviction was passed prior to the applicability of the provisions of Section 13 of the Act to a particular area, it is abundantly clear from bare reading of Section 26 of the Act that as soon as the provisions of the Act, which also includes Sec. 13, are made applicable/extended to a particular area no decree for eviction so far as it relates to eviction of such tenant can be executed against him except on any of the grounds mentioned in Section 13 of the Act even we, therefore, held that a decree for eviction passed prior to the applicability of the provisions of the Act to a particular area can be executed by the executing Court provided any of the grounds enumerated in Section 13 of the Act is in existence. 10. The next contention of Shri K.K. Sharma, learned counsel for the petitioner is that since the existence of any of the grounds enumerated in Section 13 of the Act were not under consideration while the decree for eviction against the tenant was passed, it will, therefore, be only proper that the decree of eviction passed against the tenant be set aside and the landlord-respondent if he desires can file fresh proceedings in the trial court for eviction against the petitioner tenant. Reliance has been placed on Kanhaiya Lal vs. Nemi Chand (supra). This matter came for consideration before learned Single Judge of this Court in second appeal as the decree passed by learned Munsif Jetaran was confirmed by Civil Judge, Pali. This is a brief judgment in which all facts have not been stated. The parties belonged to Jetaran where municipality was established since 29-10-1975 and thereafter a notification was issued by the State of Rajasthan on May 18, 1979 by which the Act was extended to all municipal committees. The Act thus became applicable to Jetaran towns as well. This is a brief judgment in which all facts have not been stated. The parties belonged to Jetaran where municipality was established since 29-10-1975 and thereafter a notification was issued by the State of Rajasthan on May 18, 1979 by which the Act was extended to all municipal committees. The Act thus became applicable to Jetaran towns as well. The Court, therefore, in view of Section 26 of the Act held that decree for eviction of a tenant to which this Act has been extended cannot be executed against him except on any of the grounds mentioned in Section 13 of the Act, since the suit was "filed in the year 1969 when the Act was not in force in Jetaran. The judgment and decree of both the courts below were set aside giving liberty to the landlord respondent to file fresh suit for eviction if he so desires on any of the grounds mentioned in Sec. 13 of the Act. It is evident that the above matter came up before the Court in second appeal while the present proceedings have arisen out of execution proceedings of a decree for eviction passed against the tenant which is pending in the executing court. Therefore, the case of Kanhaiyalal vs. Nemi Chand (supra) is not relevant so far the present matter is concerned. Reliance was also made to Full Bench decision of Shyam Sunder Lal vs. Shagun Chand (9) a Full Bench decision of Allahabad High Court, in which also similar matter was under consideration. The matter came before consideration of the Court in appeal. This was also a case where the U.P. (Temporary) Control of Rent and Eviction Act 1947 (3 of 1947) was made applicable to a particular area by way of notification by the State Government. The question, therefore, arose whether the tenant could take advantage of the protection provided to the tenants under the provisions of the above stated Act. The answer was given in affirmative and the Court thought it proper to send the case to the court below with direction that both the parties be given opportunity to amend the pleadings if they so want and to produce such additional evidence as they consider appropriate and as is relevant to the controversy and determine the suit in accordance with law. This again is a matter which, was considered at the stage of second appeal, therefore, the facts and circumstances of the case under our consideration are different in as much as the matter for consideration has arisen at the time of execution of the decree for eviction passed against the petitioner/tenant. It is also contended by Shri Sharma that the Act has to be given beneficial interpretation for the tenants and, therefore, full opportunity must be given to the tenant to disprove the case for eviction put up by the respondent landlord under any of the provisions of Sec. 13 of the Act. From this angle, it is contended that it is desirable that the decree for eviction should be set aside and the respondent-landlord may be given liberty to file fresh proceedings for eviction, of the petitioner if he so desires. It is further pointed out that if the executing court is allowed to decide this matter, the petitioner shall loose right of appeal also. 11. The main question that now arises for determination is the scope and extent of Sec-26 of the Act. This Sec. has been already extracted above and is clearly exercised a duty on the executing-court to see whether any of the grounds mentioned in Sec. 13 of the Act existed before putting the decree for eviction in execution. In Jagjivan Singh Vs. Sitaram (10), it was observing by Wanchoo, C.J. as he was then that the executing-Court "can satisfy itself on this point in one or two ways. If the question, whether any of the condition mentioned in Section 13 exists, was agitated in the trial court and decided in favour of the landlord, the executing Court will, on the principle of res-judicata; accept that decision inter partes and be satisfied that decree could be executed. If on the other hand, no such question under S. 13 was raised or if such question was raised but never decided it would be for the executing-Court to decide that question for itself." The contention of learned counsel for the petitioners is that if the interpretation is so given that it is the executing Court which will have to satisfy itself regarding existence of any ground enumerated in Sec. 13, the petitioner-tenant shall loose right of appeal which he could have if the question is decided by the trial Court. We do not find any merit in this contention, for the simple reason that the law has to be interpreted in the manner it exists. We may observe that it is none of the concern of the Court to see what shall be result of two interpretations of a particular provision of law. The law has to be construed as it stands. A Judge is bound to the law as he finds it to exist and will not interpret in the manner he desires it to exist. Similar view was taken in Chand Shankar Vs. Bohre Sukh Lal (11), while interpreting almost similar words in Section 14 of the U.P. Act. 12. We, therefore, are of the considered opinion that it is the duty of the executing Court to satisfy itself under Section 26 that one or the other of the conditions mentioned in Section 13 is satisfied before the decree for eviction is executed. The executing Court will, therefore, proceed to record the statements of each party and such other witnesses of both the parties which it thinks necessary, to reach any conclusion regarding the existence of any of the grounds mentioned under Section 13 of the Act. Since the matter has become quite old, it should be disposed of expeditiously. The Executing court shall fix up atleast two dates in every 15 days for hearing of the matter. 13. In the result, the petition is disposed of as above with no order as to costs.