P.L. MORADA Vs. S.D. BAKSHI

JUDGEMENT

(1.) Shri S. D. Bakshi landlord of Grange Villa filed a petition under Sec. 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred to as the Act of 1949) against his tenant Major (Retd.) P. L. Morada on the ground of personal requirement of the accommodation. This petition was allowed on 22 -3 -1972 and an order directing the tenant to put the landlord in possession was made by the Controller. Subsequently the order was appealed against and also revised by the High Court but nevertheless it was maintained. Thereafter the landlord applied for execution on 12 -4 -1973 before the Subordinate Judge, Simla under Sec. 17 of the Act of 1949. In that execution case an objection was taken under Sec. 47 of the Code of Civil Procedure that the Civil Court had no jurisdiction to execute the order of eviction and that it was the Controller who could execute the order in view of Sec. 23 of the Himachal Pradesh Urban Rent Control Act, 1971, which had come into force with effect from 5 -11 -1971. This objection was dismissed by the executing Court as well as by the District Judge in first appeal. Thereafter a second appeal was filed in the High Court. During the pendency of that appeal an application was moved on 12 -12 -1973 by the tenant under Order 41, Rule 27 of the Code of Civil Procedure, seeking to adduce additional evidence to prove that a considerable part of the building had fallen vacant and that the landlord no longer stood in the need of any more accommodation and as such it could not be held that he required the disputed residential building for his own occupation. The High Court without deciding this application allowed the appeal on 7 -3 -1974 as it was held that the Controller specified in Sec. 23 of the Himachal Pradesh Urban Rent Control Act, 1971, alone had the authority to execute the order and that he could only do that after satisfaction under Sec. 14 of that Act resulting in a fresh order of eviction under that section. Thereafter the landlord went to Supreme Court in a further appeal but during the pendency of that appeal it was discovered that the Himachal Pradesh Urban Rent Control (Amendment) Act, 1975, had come into force and thereby a proviso was added to Sub -section (2) of Sec. 28 of that Act which provided that an order passed under Sec. 13 of the Act of 1949 could be executed in accordance with the provisions of the Act under which it was passed. The obvious inference was that the Act of 1949 was only pertinent and under Sec. 17 of that Act the Civil Court had the jurisdiction to execute the order. However, the learned Judges of the Supreme Court left two questions open to this Court while making the order of remand in that appeal - Namely that the High Court could dispose of the application under order 41, Rule 27 of the Code of Civil Procedure after ascertaining if additional evidence was needed to decide the question as to the requirement of the landlord within the meaning of Sec. 13(2)(a)(1)(a) and secondly the High Court may also have to consider the question whether the tenant is entitled to raise that question at the stage at which he intends to do so.

(2.) After the appeal came back to the High Court with that order of the Supreme Court, the tenant filed another application on 12 -9 -1975 under the same provision, that is to say Order 41, Rule 27 whereby he repeated his request to produce additional evidence so that he could establish that the landlord no longer bona fidely required the accommodation for his own use as some extra accommodation was vacated by some other tenant of which the landlord had come into possession. The foremost question that seems to arise relates to the very stage at which the question regarding additional evidence arises. Can it be stated that during execution stage when an order directing the tenant to put the landlord in possession, is already passed by the Controller, a fresh satisfaction is needed before actually evicting the tenant as to whether the requirement of the landlord continues or any alteration has taken place in his need due to any portion of the building having fallen vacant. In other words can the Court go behind the order directing eviction of the tenant at the execution stage and de novo satisfaction of the Controller is required under Sec. 13 of the Act of 1949. The learned Counsel for the tenant relied upon the language of Sec. 13 and further took assistance from the object behind the Act emerging from the preamble which is described, as an Act to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom. The learned Counsel proceeds to argue that the object behind the Act is to restrict the eviction of the tenants and, therefore, double satisfaction is needed for the Controller -one at the time of making the order directing eviction and secondly at the time of execution actually evicting the tenant.

(3.) We have given our best consideration to this argument and in our opinion there does not appear to be any force in this. The learned Counsel for the Respondent brought to our notice two decisions of the Delhi High Court of which the reports are: Vas Dev v/s. S. Sohan Singh and Ors. : 1968 D LT 492 and Sita Ram v/s. Jai Babu, 1973 RCR 664. In Vas Dev (supra) it was held that the bona fide requirement of the landlord has to be satisfied only at the time when the order of eviction is passed. At the stage of execution the executing Court has no right to go behind the decree or order and as such the order directing eviction will not be open to question. In Sita Ram (supra) a Division Bench of that Court arrived at the same conclusion and held that the tenant could not re -open the decree or the order in execution proceeding. Their Lordships [applied the principle of res -judicata and held that finality was attached to the proceedings. Once an order of eviction is passed it cannot be re -opened on the happening of a subsequent event at the stage of execution and a fresh satisfaction of the Controller was not needed as to the requirement of the landlord. In both these cases, however, the Courts were considering the provisions of Delhi and Ajmer Rent Control Act, 1952, and it is urged by the learned Counsel for the Appellant that under Sec. 14(1) of that Act an order or decree for recovery of possession could only be made by a Court or Controller in favour of the landlord against a tenant provided the conditions laid down therein were satisfied and one of the condition was the bona fide requirement of the landlord. The learned Counsel contended that in Sec. 13 of the Act of 1949 the language is different and contemplates both the stages, namely, the initial stage of making the order directing eviction and the execution stage when such an order is actually executed and the tenant is evicted. The learned Judges in the aforesaid two cases have of course held that the decree or order meant one and the same thing and the argument that order refers to execution order while the decree refers to the decree asking for recovery of possession, was repelled. Since we are not concerned with the language of that Sec. we shall confine our attention to Sec. 13 of the Act of 1949. The relevant portion of Sec. 13 is in the following terms;