BHAGAT RAM Vs. LILAWATI GALIB

JUDGEMENT

(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- p leted 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 decreeholder- 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,