BABOO RAM Vs. AJMER SINGH

JUDGEMENT

(1.) The facts, giving rise to this appeal, against an order of the learned District Judge, Mahasu, whereby an appeal, against an order of the learned Subordinate Judge, Solan, was dismissed, are as follows:

(2.) The respondent had filed an application, under Section 13 of the Punjab Urban Rent Restriction Act, as applied to Himachal Pradesh (hereinafter referred to as the Punjab Act), before the controller, Solan, for evicting the appellant, from a motor garage, owned by the respondent. It was alleged that the appellant was a tenant of the motor garage, that he had not paid 'the rent and' that the respondent required the motor garage for his own occupation. The appellant paid the rent before the controller. He contested the allegation that the respondent required the motor garage for his personal use. The controller accepted the plea of the respondent that he required the motor garage for his personal use. He allowed the application of the respondent and passed an ejectment order against the appellant, on 31-12-1960. The appellant was given one month's time to vacate the motor garage. The appellant went up in appeal, to the appellate authority. The appeal was compromised. In accordance with the terms of the compromise, the order of ejectment, passed by the controller, was upheld but the appellant was granted 15 months' time to vacate the motor garage. The order in a appeal was passed in 13-12-61. The appellant filed an application, under Section 47. C. P. C., on 25-3-1963, before the Subordinate Judge, Solan, questioning the validity of the order of ejectment. It was contended that the premises, in dispute, was a shop and not a motor garage and that the controller or the appellate authority had no jurisdiction to evict the appellant from the shop on the ground that the respondent required it for his personal use, and that order of ejectment was therefore, without jurisdiction and void. The Subordinate Judge rejected the application of the appellant, holding that, as an executing Court, he could not go behind the ejectment order. The decision was upheld by the learned District Judge, on appeal.

(3.) The appellant has come up in second appeal, to this Court. A preliminary objection was taken up, on behalf of the respondent, that the second appeal was not competent. The learned counsel for the appellant met the preliminary objection, by contending, that as the order, under appeal, was passed under Section 47, C. P. C., and was a decree, second appeal was competent under Section 100, C. P. C. The contention of the learned counsel for the appellant is unsound. The competency of a second appeal, in Himachal Pradesh, is not governed by Section 100, C. P. C., by the para. 32 of the Himachal Pradesh (Courts) order, 1948. The provisions of para. 32 make it abundantly clear that a second appeal lies against a decree, passed in a suit only. The order, under appeal was passed under Section 47; C. P. C. It may be regarded as a decree. The question, which requires consideration, is whether it was a decree passed in a suit. The order, related to the execution of an ejectment order, passed on an application under Section 13 of the Punjab Act. Such an application is not a suit. The word 'suit' has not been defined in the Himachal Pradesh (Courts) Order or in the C. P. C. Section 20, C. P. C., says that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. The C. P. C., does not define the word 'plaint', but Order 7 prescribes the particulars to be given in a plaint. An application, under section. 13 of the Punjab Act, does not contain the particulars of a plaint. Such an application, therefore, cannot be considered to be a plaint. A proceeding which does not commence with a plaint, cannot be held to be a suit, vide. Secretary of State v. Kundan Singh, AIR 1932 Lah 374. In thatcase an application under para. 17, Schedule 2, C.P. C., was held not to be a suit. In Mst. Kalawati v. Devi Ram, AIR 1961 Him Pra 7, a petition, under the Hindu Marriage Act was , held, not to be a suit. For the reasons stated above, a proceeding under Section 13 of the Punjab. Act is not a suit. The mere fact that Section 17 of the Punjab Act provides that every order, passed under Section 13, shall be executed by a Civil Court, as if it were a decree of that Court, cannot lead to the inference that the aforesaid order may be regarded as a decree of a Civil Court for all purposes or that it may be regarded as a decree passed in a suit. The only effect of Section 17 is that a Civil Court is invested with jurisdiction to execute an order, passed under Section 13, in accordance with the provisions, applicable to the execution of its decrees.