Smt. Jawantri Devi vs Bawa Singh and others

D.V. Sehgal, J.—This revision petition is directed against the order dated 1.4.1987 passed by the Additional Senior Sub Judge, Jagadhari. The Decree-holder Petitioner had filed an application u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short the ''Act'') on 12.3.76 for the ejectment of Bawa Singh tenant-Respondent No. 1 from a vacant piece of land. It was inter-alia pleaded in para 2 of the application that Respondent No. 1 took the vacant land on lease for a period of 20 years for commercial purposes on annual chakota of Rs. 60/- This averment was admitted by Respondent No. 1 in his written statement

The ground for ejectment pleaded in the application u/s 13 of the Act by the Petitioner was that without her written consent Respondent No. 1 had sublet the demised land to Respondents Nos. 2 to 4 It is pertinent to note that in his written statement Respondent No 1 did not deny the fact that the land was let out to him for commercial purposes nor did he deny the jurisdiction of the Rent Controller to entertain the application. The Rent Controller ultimately passed an order of ejectment against Respondents Nos. 1 to 4 qua the demised land on 12.2.1980 Respondent No 1 filed an appeal u/s 15(2) of the Act but the same was dismissed by the learned Appellate Authority. Ambala vide its order dated 3.9.1986. He then filed Civil Revision No. 3919 of 1986 Bawa Singh v. Jawantri Devi (1975)77 P.L.R. 686, in this Court which was dismissed by me in limine on 8.12.1986.

When the Petitioner sought to execute the order of ejectment by filing the execution application No. 1/10 of 3.1.1987, Respondent No. 1 filed an objection petition u/s 47 of the CPC (for short ''the Code'') raking inter alia the plea that the demised land was not rented land within the meaning of Section 2(f) of the Act and as such the authorities under the Act had no jurisdiction to pass an order of ejectment This plea was controverter by the Petitioner According to her Respondent No. 1 having lost the case up to the High Court had taken this plea of jurisdiction simply to delay the execution proceedings The learned Executing Court, however, vide the impugned order framed the following issues: -

Whether the land in dispute was not rented land and the Rent Act is not applicable to the same and as such order under execution is illegal, null void and unexcitable? OPO

Relief

The Petitioner feeling aggrieved against the aforesaid order has approached this Hon''ble Court.

I am of the considered view that the learned executing Court has stepped beyond its jurisdiction when it has launched an adjudication on the question whether or not the demised land was a rented land by framing the aforesaid issues. As already mentioned in para 2 of the ejectment application it was specifically pleaded by the Petitioner that the vacant land had been taken by Respondent No. 1 for commercial purposes which was categorically admitted by Respondent No 1. Section 2(f) of the Act defines "rented land" to mean any land let separately for the purpose of being used principally for business or trade. It is thus clear that Respondent No 1 admitted that the land was rented out to him for commercial purposes which include business or trade. In fact, even before the High Court he did not attempt to withdrew his admission to the effect that the demised land had been let out to him for commercial purposes. It was, therefore, a dubious attempt on his part to delay the execution of order of ejectment when he raised the objection with regard to the jurisdiction under the Act as also the question whether the land was rented land or not. Obviously this plea could not be adjudicated upon during the course of execution of the ejectment order.

Learned Counsel for Respondent No. 1, however, has vehemently contended that the impugned order by which the above issues have been framed does not come within the ambit of words "case decided" as adumberated in Section 115 of the Code. He contends that it is only when some right or obligation of the parties at controversy is decided by an order that it can be said that it is a case decided within the meaning of Section 115 of the Code. The question whether the wrong placing of onus of an issue is a case decided was answered by a Full Bench of this Court in M/s Sadhu Ram Bali ham and Anr. v. Ghansham Dass Madan Lal and Ors. (1975)77 P.L.R. 686. It was held that the placing of onus in the light of the provisions of Sections 101 to 103 of the Indian Evidence Act, assumes great importance. The party on whom the onus is placed is required to lead evidence to prove the existence of facts so embodied. It can therefore, be said that by placing of onus wrongly, some right or obligation of the parties in controversy is decided and, therefore, an order of this nature falls within the words "case decided" u/s 115 of the Code. I am not hesitant to hold that when an issue does not arise out of the pleadings of the parties or is not required to adjudicate upon by the court but is still framed by it, the Court requires a party to lead evidence to prove existence of certain facts which amounts to an order in the nature of deciding right or obligation of the parties at controversy. I, therefore, find full support from M/s Sadhu Ram Bali Ram''s case (supra).

Learned Counsel for the Respondents has then placed reliance on Sunder Dass Vs. Ram Prakash, , to contend that when a court or tribunal whose decree is sought to be executed lacks inherent jurisdiction to pass such order/decree, the executing Court could go behind it and hold that it had no jurisdiction and the order is invalid. There can be no quarrel with this proposition But, as has already been discussed above in detail, there can be no manner of doubt that the learned Rent Controller had the jurisdiction to pass the order of ejectment because it was the admitted case of the parties that the land had been rented out for commercial purposes, i.e., for business or trade. In fact, Respondent No. 1 had, at no stage, questioned the jurisdiction of the authorities under the Act till the proceedings culminated in dismissal of his revision petition by this Court. I have, therefore, no hesitation to hold that the ratio in Sunder Dass''s case (supra) has no application to the facts of the case in hand.

Consequently, the order of the trial Court cannot be sustained. This revision petition is allowed and the impugned order is set aside. The parties are, however, left to bear their own costs.

The learned executing Court shall now proceed to execute the order of ejectment in accordance with law. As already held above, the objection raised by Respondent No. 1 u/s 47 of the Code has no force whatsoever. The learned executing Court shall take expeditious steps to execute the order of ejectment which passed way back in the year 1980. The parties through their counsel are directed to appear before the executing Court on November 28, 1988.