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PETITIONER: LAKHMI CHAND KHEMANI

       Vs.

RESPONDENT: SMT.  KAURAN DEVI

DATE OF JUDGMENT: 05/11/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. MUDHOLKAR, J.R. BACHAWAT, R.S.

CITATION:  1966 AIR 1003            1966 SCR  (2) 544  CITATOR INFO :  D          1977 SC 789  (16)

ACT: Delhi  Rent  Control Act, 1958-Tenant defined  in  s.  2(1)- Person  against whom decree cannot be executed owing to  the provisions  of  s.  19 of the Slum  Areas  (Improvement  and Clearance)  Act,  1956 whether remains  ’tenant  under  Rent Control   Act-Suit  for  declaration  of  such   person   as trespasser whether barred by s. 50 of the Rent Act.

HEADNOTE: The appellant was the tenant of a building in Delhi of which M  was the owner.  M filed a suit and secured a  decree  for the  ejectment of the appellant.  While an appeal from  that decree  which  was  dismissed was  pending  the  Slum  Areas (Improvement  and  Clearance) Act, 1956 came into  force  in Delhi  and  was  made applicable to the  area  in  question. Under s. 19 of the Act no landlord could execute his  decree for ejectment against a tenant without the permission of the competent  authority.  Such permission was refused to M  and his  decree  remained  unexecuted.  He  therefore  sold  the building  to the respondent who filed another  suit  against the appellant for his ejectment on the ground that he was  a trespasser  in view of the ejectment decree in favour of  M. The  appellant  pleaded in defence that despite  M’s  decree against  him he remained a tenant within the meaning  of  s. 2(1) of the Delhi Rent Control Act, 1958 and therefore under s. 50 of the Act no suit in a civil court would lie  against him.   The trial court accepted his contention but the  High Court  rejected it.  With special leave he appealed to  this Court. The questions for consideration were (1) whether in view  of the provisions of s. 19 of the Slum Areas Act the  appellant was  a  ’tenant’ to whom the protection of s. 50  the  Delhi Rent  Control Act, 1958, was available, and (2) whether  the power  given  to the Controller under the Rent  Control  Act barred the filing of the suit in the civil court. HELD  : (i) There is nothing in s. 19 of the Slum Areas  Act to  warrant the view that a tenant within the meaning of  s. 2(1)  of the Delhi Rent Control Act of 1958 would include  a tenant against whom a decree in, ejectment has been  passed.

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Section  19  only  says that a person who.  has  obtained  a decree  in ejectment cannot execute it without the  previous permission  of the prescribed authority.  The  section  does not define the word tenant’s in any way and is not concerned with  the  question whether tenants suffering  a  decree  in ejectment  still  continue to the such  tenants  within  the meaning of the Rent Act.  The Rent Act was passed after  the Slum  Areas Act and when it excluded from the definition  of ’tenant’  one  against whom a decree in ejectment  had  been passed  it did not obviously contemplate that the  provision of  the  Slum  Areas  Act would  affect  the  definition  of ’tenant’ in it in any way.  Section 2(1) of the Act of  1958 must be read by itself and its meaning cannot be affected by any consideration derived from s. 19 of the Slum Areas  Act. [550 C-E, G; 551 A] (ii)Section 50 of the Delhi Rent Control Act, 1958 bars the jurisdiction of a civil court to try a suit for the eviction of a tenant, that is to say, a tenant defined in s. 2(1)  of the  Act.  It would not bar a suit against -a person who  is not a tenant as so defined.  Under the ordinary law  applic- able  to landlords and tenants a tenant who has suffered  an ejectment decree 545 is not considered a tenant any more; he has after the decree none  of the lights which as a tenant he earlier  possessed. [549 H; 550 A] Therefore after M’s decree against him the appellant  ceased to be a tenant’ within the meaning of s. 2(i) of the  Delhi- Rent Control Act, 1958 and could not claim the protection of JUDGMENT: Jyoti     Pershad  v.  The  Administration  for  the   Union Territory of Delhi [1962] 2S.C.R. 125, held inapplicable. (iii)     The  Controller under s. 42 of the Rent Act,.  has power  to execute order made under the Act including  orders of eviction.  Owing to the provision in s. 50 that no  civil court shall entertain a suit in any proceeding in so far  as it  relates to any matter which the Controller is  empowered to decide, the civil court is barred from executing an order for  eviction.  However in the present case the trial  court was  not asked to execute any decree for eviction.   It  was asked  to decide whether the appellant was a trespasser  and so  liable to eviction.  It does not follow that  because  a civil court cannot execute a decree for eviction passed by a Controller,  it  cannot also decide the question  whether  a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. [552.’ A-C]

& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 641 of 1965. Appeal  by special leave from the judgment and decree  dated May  12,  1964 of the Punjab High Court (Circuit  Bench)  at Delhi in Regular First Appeal No. 209-D of 1962. C. B. Agarwala and A. G. Ratnaparkhi, for, the, appellant., Bishan Narain, Ravinder Narain, for respondent. The Judgment of the - Court was delivered by Sarkar, J. This appeal was filed with special leave of  this Court  granted  on  August 14,  1964.   Various  interesting questions  of law were sought to be raised on behalf of  the appellant  but in our view they do not arise at this  stage. The  appeal  must be confirm to the points  decided  in  the courts below. The  case appears to us to be somewhat out of the  ordinary. One  Mehtab Singh was the owner of a certain building  known

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as.   Akbar  Building, situate in Mohalla Ganda  Nala,  Gali Rajan,  Delhi.   The  appellant was a tenant  under  him  in respect  of certain accommodation in the building.  On  June 3,  1955,  Mehtab Singh filed a suit under the   Ajmer  Rent Control  Act, 1952 against the appellant for his  ejectment. On  October 11, 1956 that suit was decreed.   The  appellant filed  an  appeal against that decree  which,  however,  was dismissed  on March 27, 1957.  He thereafter moved the  High Court   of  Punjab  in  revision  but  here  also   he   was unsuccessful.   The  precise date of the  dismissal  of  the application in revision does not appear on the record but it was sometime between March and September 1957. 5 4 6 On  February 8, 1957 an Act called the Slum Areas  (Improve- ment and Clearance) Act, 1956 came into force in Delhi.   By a  notification issued under s. 3 of this Act, the  area  in which the building with which we are concerned was  situate, was  declared a slum area for the purposes of the Act  which meant  that the buildings in that area were unfit for  human habitation or that for various reasons they were detrimental to  safety, health or morals ,of human beings.  The date  of this notification does not appear from the record but it  is not in dispute that it was issued before.  September 1957. Sub-section (1) of s. 19 of this Act which is the  provision on  which the appellant’s case is principally based,  is  in these terms               S.19(1)’Not with      standing    anything               contained in any other law for the time  being               in  force,  no  person who  has  obtained  any               decree  or order for the eviction of a  tenant                             from  any  building in a slum  area  s hall  be               entitled  to  execute such  decree,  or  order               except with the previous permission in writing               of the competent authority". When  after the dismissal of the revision  petition  against the  ejectment  decree Mehtab Singh sought  to  execute  the decree,  he  was faced with the difficulty created  by  this provision.  He thereupon applied to the specified  authority for permission to execute the decree but this was refused on September 12, 1957.  He appealed to the appellate  authority mentioned  in  that  Act but that  appeal  was  rejected  on January 7, 1958. Being thus baffled in his attempts to get possession of  the accommodation  occupied by the appellant, in  execution   of the ejectment decree, Mehtab Singh sold the building to  the respondent on August 21, 1961.  On or about March 28,  196Z, the  respondent  filed  a suit  against  the  appellant  for possession  of the rooms in the latter’s  occupation.   This suit  was filed in the Court ,of a Sub-Judge of Delhi  which was  an ordinary civil Court.  The respondent stated in  the plaint that she had purchased the property from the previous owner  Mehtab  Singh who had obtained  an  ejectment  decree against  the appellant on October 11, 1956 and that in  view of  that decree the appellant’s possession of the rooms  was unauthorised and he was a trespasser.  The respondent  based her  claim  to  recover possession of  the  rooms  from  the appellant  on  the aforesaid ground, namely, that he  was  a trespasser.   In defence the appellant contended that s.  19 of the Slum Areas Act barred the suit and also that no civil court had juris- 547 diction  to entertain it in view of s. 50 of the Delhi  Rent Control Act, 1958 which had come into force on February  19, 1959 repealing the Delhi and Ajmer Rent Control Act, 1952 in

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so far as that Act applied to Delhi, as he continued to be a tenant  of  the rooms in spite of the decree  in  favour  of Mehtab Singh of October 11, 1956. following five issues               (1)   Whether  the plaintiff is the  owner  of               the premises in suit?               (2)   Whether the defendant is in unauthorised               occupation  of the premises in dispute and  is               not a tenant in the same ?               (3)   Whether the suit is barred under Section               19 of the Slum Area (Clearance &  improvement)               Act, 1956 ?               (4)   Whether the Civil Court has jurisdiction               to try    this suit ?               (5)  Relief. On  the first issue he held that the respondent  had  proved her ownership of the premises and this finding has not  been challenged in any subsequent proceeding.  He decided  issues Nos.  2  and  3 together and -held that  the  real  question involved in them was whether the appellant was a tenant.  He observed  that s. 2 (I) of the Delhi Rent Control Act,  1958 no  doubt provided that a tenant for the purpose of the  Act would  ’not  include any person against whom  any  order  or decree  for  eviction has been made" but he  held  that  the words "order or decree for eviction" in the provision  meant an  executable  decree or order.  He then said that  as  the prescribed  authority under the Slum Areas Act  had  refused permission  to  Mehtab  Singh  to  execute  his  decree   in ejectment,,  that decree was not an executable  decree  and, therefore, it. could not be said that the appellant was  not a  tenant  although a decree for eviction  had  been  passed against  him.  In this view of the matter he held  that  the appellant  must be deemed to have continued to be  a  tenant under  Mehtab Singh and the respondent who was a  transferee from  Mehtab  Singh had no better rights in  the  properties than  what  Mehtab  Singh had.  Apparently,  the  ’  learned Subordinate  Judge held that after the respondent  purchased the property, the appellant had become her tenant.  He 548 observed  that if the contention of the respondent that  the appellant  had  ceased  to be a tenant as a  result  of  the decree  was accepted, S. 19 of the Slum Areas Act  would  be rendered  nugatory.   He was not prepared to accept  a  view which  led to such a result.  As it was not in dispute  that if  the  appellant was a tenant he had  no  jurisdiction  to entertain the suit in view of 9. 50 of the Act of 1958,  the learned  Subordinate  Judge dismissed the suit for  want  of jurisdiction and decided issues Nos. 4 and 5 accordingly. The  respondent appealed against this judgment to  the  High Court of Punjab.  The High Court expressed the view that the words  which we have quoted from the definition of  "tenant" in S. 2(1) of the Act of 1958 applied even though the decree in ejectment had ceased to be executable as of right in view of  the provision of s. 19 of the Slum Areas Act.   It  held that s. 50 of the Act of 1958 which barred the  jurisdiction of  a civil court to entertain suits for  ejectment  against "tenants" did not take away the learned Subordinate  Judge’s jurisdiction to try the respondent’s suit, for the appellant was no longer a tenant after the decree of October 11,  1956 directing his eviction.  It appears also to have been argued before  the  learned Judges of the High Court that  when  an order  in  ejectment had once been made  against  a  tenant, another order could not be passed against him respective  of whether  the  earlier  order was made  in  executable  by  a statute  or  not.  Dealing with this argument,  Dua  J.  who

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delivered  the judgment of the Court, observed, "This  broad proposition,  in my opinion, may not always hold good,  but, in,  any  event,  the  institution  of  the  suit  and   the jurisdiction of the civil court to try the same can scarcely be  held  barred on this ground.  Whether or not to  pass  a decree  or  order for eviction on the ground  that  such  an order had already been passed, may have to be determined  on the  merits  of the particular controversy on its  own  cir- cumstances, the question scarcely, affects the  jurisdiction of the Court to entertain and try the suit." The High  Court concluded  by  saying, "For the reasons  foregoing,  we  are clearly  of  the view that the order of the Court  below  is erroneous and allowing the appeal we set aside the  judgment and  decree of the learned subordinate Judge and  remit  the case  back  to the trial court for  further  proceedings  in accordance  with law, in the light of the observations  made above." It  would  thus appear that the only point  which  the  High Court   decided  was  whether  the  Subordinate  Judge   had jurisdiction  to  try the suit.  It refused to go  into  the question whether on the merits, 549 the  suit  would succeed and remitted the case back  to  the Subordinate  Judge apparently because be had not  considered those  merits,  that  is to -say, whether  in  view  of  the earlier  ejectment decree a fresh ejectment decree could  be passed.   It  is  clear from what we  have  said  about  the judgment  of the learned -Subordinate Judge that he had  not in  fact gone into the merits of the case and had only  held that  in  view  of s. 19 of the Slum Areas  Act  he  had  no jurisdiction to entertain the suit as the appellant remained a  ’tenant’  within the meaning of that word in the  Act  of 1958 notwithstanding the decree in ejectment against him. In this appeal the only question that we have to consider is whether  the  High  Court was right  in  passing  the  order remanding  the  case to the learned  Subordinate  Judge  for trial on the merits.  That would depend on whether the  High Court  was right in its view that notwithstanding s.  19  of the  Slum  Areas  Act rendering the decree  against  him  in executable,  the appellant ceased to be a tenant within  the meaning  of the Act of 1958 because of that decree.   Before proceeding  to discuss the question, we think it  proper  to observe  that if the High Court was right in its view  about the appellant ceasing to be a tenant, it was fully justified in  passing the order of remand.  It was not called upon  to decide -whether the suit might succeed on the merits.   That question  had  not been decided by the  learned  Subordinate Judge and it did not strictly arise in the appeal before the High  Court.  The High Court was certainly entitled  to  the views of the learned Subordinate Judge on it. -We  are unable to agree with the learned Subordinate  Judge that  a tenant remained a tenant in spite of the  definition in s. 2 (1 ) of the Act of 1958 and notwithstanding a decree in ejectment earlier passed against him, because, in view of the  refusal of the authority concerned to grant  sanctioned to  execute  the decree under s. 19 of the Slum  Areas  Act, that  decree was for the moment in executable.  The  Act  of 1958 quite clearly excluded from the definition of  "tenant" a  person against whom any order or decree for eviction  had been  made,  that  is  to say, under it  a  tenant  who  had suffered  a  decree  in  ejectment was  no  more  a  tenant. Section 50 of this Act says, "No Civil Court shall entertain any  suit  or proceeding in so far as  it  relates......  to eviction  of any tenant under s. 14".  Section  14  provides for  an  order  in ejectment being made  by  the  Controller

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appointed  under the Act on any of the grounds mentioned  in it  but  not  otherwise.  Section 50,  therefore,  bars  the jurisdiction of a civil court to try a suit for the eviction of 550 a  tenant, that is to say, a tenant as defined in  the  Act. It would not bar a suit for eviction against a person who is not  a  tenant  as  so  defined.   Under  the  ordinary  law applicable  to  landlords  and tenants,  a  tenant  who  has suffered an ejectment decree is not considered a tenant  any more;  he has after the decree none of the rights  which  as tenant he earlier possessed. We  find  no justification for changing  the  definition  of tenant -in the Act of 1958 by drawing upon the provisions of the  Slum  Areas Act as the learned Subordinate  Judge  did. The  last  mentioned  Act is not  concerned  with  relations between  landlords and tenants as such; it does not  purport to  interfere directly with the ordinary contractual  rights of landlords and tenants either as to rent or as to recovery of possession.  However, that may be, we find nothing in  S. 19 of the Slum Areas Act to which alone we were referred  by learned counsel for the appellant for the purpose to warrant the  view  suggested that a tenant within the  Act  of  1958 would  include a tenant against whom a decree  in  ejectment has been passed.  Section 19 only says that a person who has obtained a decree in ejectment against a tenant shall not be entitled  to execute it without the previous  permission  of the  prescribed  authority.  It does not say that  a  tenant suffering the decree still ,continues to be a tenant for any purpose.   The section does not purport to define  the  word ’tenant’ in any way.  It assumes that -a decree for eviction has been passed against a tenant.  The expression "decree or order  for  the eviction of a tenant" in S.  19  necessarily contemplates  a person who was prior to the decree a  tenant within  the  meaning of the Rent Act of 1958 or any  of  its predecessors.  The section is not in any way concerned  with the  question  whether  the tenants suffering  a  decree  in ejectment  still  ,continue to be such  tenants  within  the meaning of the Rent Act.  It is of some importance to  point out  in  this  connection that the  Slum  Areas  Act  making ejectment decrees against tenants in executable without  the requisite  permission came into existence before the Act  of 1958.  It is pertinent to observe that notwithstanding this, the latter Act excluded from the definition of "tenant"  one who had suffered an ejectment decree.  Obviously, the Act of 1958  did not contemplate that the Slum Areas Act  would  in any way affect the definition of tenant contained in it.  No question  as to what the rights of a tenant again St whom  a decree in ejectment has been passed in view of S. 19 of  the Slum  Areas Act are, arises in this appeal, the  only  point being  whether his is a tenant within the Act of 1958 so  as to  oust the jurisdiction of a civil court to entertain  the suit.  We think he is not, for S. 2(1) of the Act 5 51 of  1958  must be read by itself and its meaning  cannot  be affected by any consideration derived from s. 19 of the Slum Areas Act. We  may now refer to Jyoti Pershad v. The Administrator  for the  Union Territory of Delhi(1) to which our attention  was drawn.   That  case is, in our view, of no  assistance.   It deals  with  the contention whether the Slum Areas  Act  was unconstitutional  as  it  affected  fundamental  rights   of landlords.   That  is  not a question that  arises  in  this appeal.  This Court in its judgment no doubt stated that  to buildings in slum areas both the Slum Areas Act and the  Act

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of  1958  would apply and also that the forme  Act  afforded some  protection  to tenants against eviction.  As  we  have earlier stated, we are not concerned in this appeal with any question as to the protection given by the Slum Areas Act to tenants, nor as to the result of the application of both the Acts to a particular case.  This Court did not say that  the result of applying both the Acts to a case was to make  part of  the definition of "tenant" in the Act of 1958  nugatory; that was not a question that arose.  All that the Court said was that a tenant was entitled to all such benefits as  each Act  independently  conferred  on  him.   Again-  when   the judgment  stated that the Slum Areas Act protected  tenants, it  did  not  purport to define the word  "tenant"  for  the purpose of the Acts.  This Court certainly did not say  that notwithstanding the definition in s. 2(1) of the Act of 1958 a  person would remain a tenant within the meaning  of  that Act  in spite of the order of eviction.  That  question  did not  arise  for  decision.   This case  does  not  help  the appellant at all. It  was then pointed out that s. 50 of the Act of 1958  also provided   that  "no  civil  court  shall   entertain    any proceeding in so far as it relates  to any  matter which the Controller is empowered by or under this Act to decide "  It was said that s. 25 of that Act provided that when an  order has  been made by the Controller for recovery of  possession of premises from a tenant, he will give vacant possession of the  premises to the landlord‘d by removing all  persons  in possession thereof.  It was contended that in view of  these two   provisions  the  learned  Subordinate  Judge  had   no jurisdiction  to  entertain  the  respondent’s  suit.   This argument  seems  to  us to  proceed  on  a  misapprehension. First,  we do not think that the argument  correctly  states the  effect  of  s. 25. ,It seems to us that  all  that  the section  does is to state who shall be bound by an order  of eviction  passed by the Controller and how effect  shall  be given to it.  It is unnecessary, however, to express a final opinion on the effect of s. 25, for, in any event, clearly (1)[1962] 2 S.C.R. 125. 5 52 s.   42  of the Act provides that the Controller shall  have power  to  execute  orders  made  under  the  Act.   If  the Controller  has the power to execute orders made  under  the Act  including  orders for eviction -and that  is  all  that learned counsel for the appellant now contends-all that will happen in view of that part of s. 50 ’ of the Act of 1958 on which reliance is now placed is that a civil court will  not be able to execute an order for eviction.  This however  has nothing  to  do  with the point  before,  us.   The  learned Subordinate  Judge was not asked to execute any  decree  for eviction.  He was asked to decide whether the appellant  was a trespasser and so liable to eviction.  It does not  follow that  because  a  civil court cannot execute  a  decree  for eviction passed by the Controller, it cannot also decide the question  whether  a tenant against whom such an  order  has been  passed  has  ceased  to  be  a  tenant  and  become  a trespasser.   The  present contention,  therefore,  must  be rejected. We  are told that after the High Court had passed its  order of May 12, 1964 remanding the case to the Subordinate  Judge for  trial  on the merits, the Subordinate Judge  heard  the suit  and  passed a decree in favour of  the  respondent  on August  12,  1964.   This, if correct,  must  have  happened because no order for stay of the proceedings pursuant to the order  of remand had been obtained from the High  Court.   A plain copy of the judgment of the learned Subordinate  Judge

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of August 12, 1964 was handed over to us by learned  counsel for  the appellant and from that it appears that he  thought that  since the High Court had held that the  appellant  was not a tenant within the meaning of the Act of 1958 after the decree  in  ejectment of October 11, 1956, it must  be  held that  the  respondent’s  contention  that  the   appellant’s possession of the rooms was unauthorised was correct.  It is for  this reason that the learned Subordinate Judge  appears to  have passed his decree for eviction of the appellant  of August  12, 1964.  We wish, however, to observe that we  are not  aware that the copy of the judgment is a correct  copy. We have referred to it only to say that even if correct,  it doe-,  not affect the question which we have to decide.   We are also informed that the appellant has filed an appeal  in the High Court from this judgment of the learned Subordinate Judge  and that appeal is pending.  It will be-for the  High Court  now  to decide the correctness of the decree  of  the learned  Subordinate Judge of August 12, 1964 and it is  not right  that we should express any opinion on  that  question and we do not so. The  result, therefore, is that this appeal fails and it  is dismissed with costs. Appeal dismissed. 553