BALWANT SINGH Vs. JIT KAUR

JUDGEMENT

(1.) The facts in the suit for possession filed by the appellant in the Court of Subordinate Judge, Ludhiana, giving rise to this regular second appeal are that Avtar Singh, husband of Smt. Jit Kaur respondent, and the father of other respondents was a tenant under the appellant in the premises in dispute vide rent note executed on February 21, 1973. The lease according to this rent note was for 11 months on a monthly rent of Rs. 40/-. Later on, vide agreement dated March 22, 1973, it was agreed that the appellant would not demand more rent from the appellant than was stipulated in the rent note and Avtar Singh was not to be ejected till he continued paying the rent. Avtar Singh died on August 6, 1973. The suit was brought for possession of the premises in dispute on ground that the tenancy was personal of Avtar Singh and after his death it stood terminated and was not heritable. In the written statement it was averred that it was a contractual tenant from month to month and was heritable under the agreement. The jurisdiction of the Civil Court to try the suit was also questioned. The parties went to trial on the following issues :

(2.) Both the Courts have returned a concurrent finding on issue No. 1 to hold that Avtar Singh was a statutory tenant and also that the tenancy was heritable. Learned counsel for the appellant was unable to point out any infirmity in these findings. In view of these firm findings of fact given by both the Courts the decision on issue No. 1 cannot be successfully assailed on behalf of the appellant.

(3.) The other argument of the learned counsel for the appellant is that the jurisdiction of the Civil Courts to try such cases as the one in hand is not barred. It is a fundamental principle of law that the bar to the jurisdiction of the Civil Court is not to be readily inferred or easily assumed. The exclusion of the jurisdiction of the Civil Court must either be expressly barred or clearly implied by the statute or law, on the basis of which such a bar is pleaded. Section 13 of the East Punjab Rent Restriction Act, 1949 does not bar the jurisdiction of the Civil Court from passing a decree for he eviction of a tenant either expressly or in, implied manner What it says is that no tenant shall be evicted from rented and or building in execution of a decree passed before or after the coming into force of this Act, i. e., the East Punjab Urban Rent Restriction Act, 1949 . It only provides for a procedure for eviction. The executing Court, whenever the execution of such a decree is sought, is to determine the executability of the decree in the light of the provisions of section 13 (1) of the East Punjab Urban Rent Restriction Act, 1949 , for allowing or refusing the eviction of tenant. I get support to my view from Sham Sunder v. Ram Das,1951 PunLR 59 Sadhu Singh v. District Board, Gurdaspur, 1962 AIR(P&H) 204 and Hari Chand v. Ramesh Kumar,1977 1 RentLR 148. In the case in hand, the argument on behalf of the respondent about the ouster of jurisdiction of the Civil Court to pass a decree, which has been upheld by both the Courts below, cannot be accepted. At the time of execution it is for the Executing Court to see whether in view of the provisions of section 13(1) of the East Punjab Urban Rent Restriction Act, 1949 , the tenant can an be evicted or not because of the bar created by it in the matter of procedure.