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Himachal Pradesh High Court · body
2002 DIGILAW 262 (HP)
JAYANT KUMAR ROY v. SHAM KUMAR
2002-09-16
M.R.VERMA
body2002
JUDGMENT M.R. Verma, J.:— This revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) is directed against the order of the learned Sub-Judge 1st Class (I), Amb, Distt. Una, H.P. whereby the Objection Petition No. 2-A/1998 under Section 47 of the Code of Civil Procedure about the executability of the decree sought to be executed by the respondent has been summarily dismissed. 2. Brief facts, leading to the presentation of this petition are that the petitioner instituted a suit for declaration that he is a tenant in possession of the premises standing on land comprising khewat khatauni No. 255 min/ 423, khasra No. 1156, measuring 41.76 deci meters, situate in up Mohal Devnagar, village Gagret, Teh. Amb, on payment of rent © Rs. 600 per annum, but on the basis of certain revenue entries, the respondent, who is the present owner of the premises in question, and the previous owner, Dhani Ram, now deceased, had been interfering with his possession. The suit was compromised on 25.11.1995, on the basis of a compromise arrived at between the parties to the suit and it was ordered in the decree that "in view of the compromise between the parties, the suit is disposed of by holding that plaintiff will remain in possession of the suit premises without paying any rent uptill 25th of November, 1997, on which date, he will hand over the vacant possession. In case he failed to do so, plaintiff would be entitled to recover the rent of premises uptill that date.” 3. The petitioner, however, preferred an appeal against the said compromise decree, which was dismissed by the learned District Judge, Una. The petitioner preferred a second appeal in this Court, being RSA No. 35 of 1999, which stands dismissed vide separate judgment of the date passed by this Court, holding that there was no bar to the Civil Court to entertain the suit of the petitioner for declaration and injunction and to pass a decree based on compromise therein. However, the question of executability of such decree which has the effect of directing eviction of a tenant from the demised premises has been left open in the said appeal. 4. In the meanwhile, the respondent herein, filed execution petition on 6.2.1998 for execution of the aforesaid compromise decree.
However, the question of executability of such decree which has the effect of directing eviction of a tenant from the demised premises has been left open in the said appeal. 4. In the meanwhile, the respondent herein, filed execution petition on 6.2.1998 for execution of the aforesaid compromise decree. The petitioner filed objection under Section 47 of the Code on the grounds that the execution petition was not maintainable, as the decree sought to be executed was without jurisdiction and Section 14 of the H.R Urban Rent Control Act (hereafter referred to as the Act) prohibits the execution of such a decree. The objection petition was contested by the respondent on the ground that the decree sought to be executed was a compromise decree which was passed in a suit instituted by the petitioner at his request and, therefore, is enforceable. The executing Court, by the impugned order, dismissed the objection petition summarily. Hence the present petition. 5. I have heard the learned Counsel for the parties and have also gone through the material on record. 6. Relevant part of Section 14 of the Act reads as under : "14. Eviction of tenants.—(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Act." 7. It is clear on a bare reading of the aforesaid provisions that these do not create any bar regarding institution of a civil suit, but merely debars the execution of a decree passed before or after the commencement of the Act or otherwise except in accordance with the provisions of the Act. 8. Thus, in view of the provisions of Section 14 of the Act, even if there is a valid decree passed by a Civil Court regarding eviction of a tenant who continues to be in possession of the demised premises, it cannot be executed against him by virtue of the provisions of Section 14(1) supra. 9.
8. Thus, in view of the provisions of Section 14 of the Act, even if there is a valid decree passed by a Civil Court regarding eviction of a tenant who continues to be in possession of the demised premises, it cannot be executed against him by virtue of the provisions of Section 14(1) supra. 9. In Mani Subrat Jain v. Raja Ram Vohra, AIR 1980 Supreme Court 299, the Honble Supreme Court, while dealing with the scope of the provisions of Section 13(1) of the East Punjab Urban Rent Restriction Act, which are almost similar to the provisions of Section 14(1) of the Act, held as under: "5. It is too platitudinous to preach and too entrenched to shake, the proposition that rent control legislation in a country of terrible accommodation shortage is a beneficial measure whose construction must be liberal enough to fulfil the statutory purpose and not frustrate it. So construed, the benefit of interpretative doubt belongs to the potential evictee unless the language is plain and provides for eviction. That intendment must, by interpretation, be effectuated. This is the essence of rent control jurisprudence.” 6. Section 2(i) reads: "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, 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, or a person to whom the collection of rent or fees in a public market, cartstand or slaughter house or of rents for shops has been framed out or leased by a municipal, town or notified area committee. (Emphasis added) In this context, we may also read Section 13(1) which is integral to and makes impact upon the meaning of Section 2(i) even if there be any marginal obscurity. 13. Eviction of tenants.—(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended.
(Emphasis added) The expression tenant includes a tenant continuing in possession after the termination of the tenancy in his favour. It, thus, includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession. The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having regard to the carefully drawn inclusive clause. Even here, we may mention by way of contrast that Subudhis case (supra) related to a statute where the definition in Section 2(5) of that Act expressly included "any person against whom a suit for ejectment is pending in a Court of competent jurisdiction" and more pertinent to the point specially excluded "a person against whom a decree or order for eviction has been made by such a court". We feel no difficulty in holding that the text, reinforced by the context, especially Section 13, convincingly includes ex-tenants against whom decrees for eviction might have been passed, whether on compromise or otherwise. The effect of the compromise decree, in counsels submission, is that the tenancy has been terminated. Nobody has a case that the appellant is not continuously in possession. The conclusion is inevitable that he remains a tenant and enjoys immunity under Section 13(1). The execution proceedings must, therefore, fail because the statutory roadblock cannot be removed. Indeed, an application under the Act was filed by the landlord-defendant which was dismissed because the ground required by the Act was not made out." 10. In view of the above settled position in law, the execution of the decree sought to be executed against the petitioner is clearly barred by the provisions of Section 14(1) of the Act. 11. It was pointed out by the learned Counsel for the petitioner that dispossession of the petitioner in execution of the decree in question was stayed till further orders vide order dated 26.2.1999 by this Court in CMP No. 64 of 1999 filed in RSA No. 35 of 1999. The petitioner, however, has been dispossessed on 26.2.1999 in execution of the decree in question.
The petitioner, however, has been dispossessed on 26.2.1999 in execution of the decree in question. A perusal of the record reveals that an order staying dispossession of the petitioner was passed by this Court on 26.2.1999 and on the same day, the petitioner was dispossessed from the premises in question and the execution petition has now been dismissed as fully satisfied. In the given circumstances of the case, the possession of the premises deserves to be restored to the petitioner and appropriate orders are required to be passed on the execution petition afresh. 12. As a result, this revision petition is allowed and the impugned order is set aside and the objection petition of the petitioner challenging the executability of the compromise decree is allowed and the order dismissing the execution petition as fully satisfied after delivery of the possession of the premises to the respondent, is also set aside. The executing Court is directed to re-register the execution petition against its old number and date and dispose it of afresh in view of the findings recorded hereinabove. No order as to costs, 13. Parties are directed to appear before the executing Court on 26.10.2002.[ 2002 DIGILAW 262 (HP) · digilaw.ai ]