- (1.) THIS is a second appeal against the judgment and decree of District Judge, Jodhpur, dated the 28th April, 1951.
(2.) THE facts giving rise to it are that the appellant's father Paney Singh filed a suit for the electric charges, arrears of rent and ejectment from two shops against the respondent in the court of the Joint Kotwal No. 2 of the former Jodhpur State. During the pendency of the suit, Paney Singh died and the appellant as his son and legal heir came in his place. On the 20th of March, 1945, his suit was decreed by the said court. That decree was executed and the respondent was ejected from the shops on 26th April, 1946. THEreafter on 27th August, 1946, the respondent filed an application under sec. 12 of the Marwar Rent Control Order 1944. It was alleged that the appellant had obtained the decree for ejectment on the ground that the shops were required for his personal use but he did not occupy them himself within a month of the respondent's eviction. On the other hand, he learned them out others within the period of six months from the date of eviction and therefore it was prayed that the respondent be put back in possession of the shops and that the appellant be also ordered to him compensation. After this application was filed, the court of the Joint Kotwal No. 2 was abolished and the case was therefore tried by the City Munsiff, Jodhpur. THE application was dismissed by him on 11th May, 1950. THE respondent went in appeal to the District Judge, Jodhpur. He allowed the appeal, reversed the decree dated 20th March, 1945 and ordered that the possession of the shops be restored to the respondent within one month and that the appellant should also pay Rs. 50/- as damages to the respondent, in addition to the costs. It is against this judgment and decree that the present appeal has been filed. The first contention raised by the appellant's learned advocate is that the respondent had filed only an application under sec. 12 of the Marwar House Rent Control Order, 1944 and that it was dismissed by an order dated 11th May, 1950. That order did not amount to a decree and since there was no provision in law for appeal against such an order, the learned District Judge had no jurisdiction to entertain and decide the appeal and therefore his judgment and decree should be set aside only for that reason. It was urged by him that he had filed the present appeal because the District Judge had passed a judgment and decree but since the first appeal did not lie, the second appeal was also not maintainable and therefore, this should be treated as a revision application. Learned advocate for the respondent contended on the other hand that although there was no express provision for appeal against the decision passed under sec. 12 of the Marwar House Rent Control Order, 1944, the Munsiff's order dated 11th May, 1950 was tantamount to a decree and that the District Judge had committed no mistake in entertaining the appeal. The first question to be determined therefore is whether the decision given under sec. 12 of the Marwar House Rent Control Order, 1944 is appealable. Sec. 12 of the House Rent Control Order, 1944 (which will hereafter be referred to as "the Act" for the sake of brevity) runs as follows: - "when an order of ejectment has been made by a court on the ground that the house is required by the landlord for his own occupation or for occupation of any person for whose benefit the house is held by him and the house is not occupied by the aforesaid persons within a period of one month from the date of vacation of the house by the original tenant or having been so occupied is re-let within six months of the said date to any person other than the original tenant, the court may on the application of the original tenant within eight months of his vacating the house, cancel the previous order made by it for the ejectment of the original tenant and direct the landlord to place the original tenant in possession of the house and to pay him such compensation as may be fixed by it. " The appellant's learned advocate has urged that the suit for ejectment came to an end when the decree was executed and the appellant was put in possession of the house after the respondent's ejectment therefrom and that an application under this section was therefore quite independent of that suit. The decision given on this application was only an order as mentioned in the said section and since this order was not made appealable, the District Judge could not entertained any appeal. I agree with the learned Advocate to the extent that any appeal is a creation of statute and if the law does not provide for an appeal against a certain decision, the appeal would not lie. But it would appear from the language of the said section that the term "order" has been used rather loosely in place of the term "decree". The section begins with saying that "when an order of ejectment has been made by a court on the ground that the house is required by the landlord for his own occupation. . . . . . . . . . . . . . . . . . " The term "order" is more comprehensive than the term "decree". What the court really passed in a suit for ejectment is a decree for ejectment and not an order and therefore it appears that this term was loosely used in the very beginning of the section. Similarly the section further provides that the court, on the application of the original tenant, may "cancel the previous order. " Here again the word "order" has been used in place of the term 'decree'. What the court really passes under this section therefore is another decree cancelling the previous "decree of ejectment and not a mere order. In the case of Adaikappa vs. Chandra Sekhara (1) (AIR 1945 PC 12.), it was observed by their Lordships of the Privy Council: - "where a legal right is an dispute and the ordinary courts of the country are seized of such dispute, the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right arises under a special statute which does not terms confer a right of appeal. " In that case, a final decree was passed in a mortgage suit. After execution proceedings were taken out to enforce that decree, the judgment debtor filed two applications for relief under the Madras Agriculturists Relief Act (No. IV of 1938 ). The first application was made to the executing court and the other to the court which passed to the decree. Both these applications were dismissed by the Subordinate Judge, the first on 25th July, 1938 and the second on 9th February, 1939. The judgment-debtor preferred an appeal against both the decisions. The learned Judges of the High Court of Madras entertained appeal against the decision of the application in execution proceedings but as regards the decision on the other application, it was held that it was not appeable. Their Lordships of the Privy Council, however, observed that: - "the order of 9th February, 1939 was not made in execution proceedings but it was in a suit and, in other Lordships' opinion, it amounted to the formal expression of an adjudication which so far as regards the court expressing it, conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, namely with the judgment-debtor was an agriculturist and entitled therefore to his have his debt discharged or reduced under the Act. In their Lordships' opinion the order was a decree within the meaning of sec. 2 (2) C. P. C. and an appeal lay under sec. 96 of the Code. That being so, the High Court was wrong in entertaining an application in revision, since the under sec. 115 of the Code there is no jurisdiction in revision where an appeal lies. The order of the High Court setting aside the order of the Subordinate Judge of the 9th February, 1939, will have to be set aside, but this is not of any practical consequence since the application on which the order was made was redundant. The appeal against the order of 25th July, 1938 was rightly entertained. That order related to the execution, discharge or satisfaction of a decree within the meaning of sec. 41 of the Code and an appeal therefore lay under sec. 96. " To my mind, the said observations of their Lordships of the Privy Council give a complete answer to the objection raise by the appellant's learned advocate. If it be taken that the application under sec. 12 of the Act is an application to the passing the decree for ejectment for cancelling the decree, then there is certainly a legal right in dispute between the parties and since the ordinary courts of the country are seized of such dispute, they would be governed by the ordinary rules of procedure applicable thereto and an appeal would lie under the Code of Civil Procedure even though special appeal is not provided under the Act. If, on the other hand, this application under this section be taken to have been made before the executing court, then it would be covered by sec. 47 C. P. C. and in that case also an appeal would lie. The argument that the lease between the parties had concluded after the ejectment is also not tenable because this section seeks to receive the same lease between the parties if the circumstances mentioned therein take place within the prescribed period. To my mind, the application under this section is not independent of the previous suit between the parties. The purpose of laying down this section apparently is that if a landlord gets a decree of ejectment against the tenant on the ground that the house is required by him for his own occupation or for the occupation of any person for whose benefit the house is held by him and if that house is not occupied by the aforesaid persons within a period of one month from the date of vacation of the house by the original tenant or after the said house is occupied, it is re-let within six months of the said date to any person order than the original tenant, then it is presumed that the landlord's averment to the effect that the house was required for his own occupation or for the occupation of persons for whose benefit it was held by him was not bona fide that the decree was obtained by him by some sort of fraud and, he really meant to re-let it to other persons whether it may be for the purpose of increasing the rent or for some other reasons. If such circumstances are proved against the landlord within the prescribed time even after the possession is given over to him, then the section empowers that the court may cancel its previous order and restore the possession of the house to the original tenant. It further empowers the court to order the landlord to pay such compensation as may be fixed by it. It was conceded by the appellant's learned advocate that the decision given under this order is a formal expression of an adjudication, that it conclusively determines the rights of the parties with regard to all or any of the matters in controversy and that to that extent it was covered by the definition of the word "decree". His main objection was that a decree is made only in the suit and not in the application and therefore this does not amount to a decree. In my opinion, this application is also an application in the suit itself and it is not one of those applications which may be taken to be independent of the first suit. In the case of Smt. Radharani Das vs. Sisir Kumar (1) (AIR 1953 Cal. 524.), a tenant's application for rescission of an ejectment decree obtained by the landlord was rejected by the Munsiff. The application was made under sec. 6 of the West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950. A question was raised before the learned Judge of the Calcutta High Court whether the Munsif's decision rejecting the application under sec. 6 as mentioned above was appealable in law. Following the decision of their Lordships of the Privy Council in Adiakappa vs. Chandra Shekhara (2) (AIR 1945 PC, 12.), it was held by learned Judges of the Division Bench which decided the case that the order was appealable. A similar case arose in Gordhana Dutta vs. Promotha Nath (3) (AIR 1953 Cal. 524.) and the same view was taken by another Division Bench of the Calcutta High Court again and it was held that the Munsiff's adjudication was a decree under the Code of Civil Procedure. The appellant's learned advocate has referred to the case of Rangn. Batatoung Company Ltd. vs. The Collector Rangoon (4) (ILR 40 Cal 21.) and Nagappa vs. Annapoorni (5) (AIR 1941 Mad. 235.), but I need discuss them because both of them have already been considered by their Lordships of the Privy Council in Annappa's case (2) and they do not advance the appellant's arguments any further. The District Judge therefore did not exceed his jurisdiction is entertaining the appeal and the contention of the appellant's learned advocate in this behalf is fit to be dismissed. It is next contended by him that the decree passed by trial court on 20th March, 1945 nowhere mentioned that the decree of ejectment was made on the ground that the house was required by the appellant's father or by the appellant for his own use or occupation or for the occupation of any person for whose benefit the house was held by them and therefore the District Judge had no authority to reverse that decree in an application under sec. 12 of the Act. It appears from the record that the Munsiff Jodhpur had upheld this contention but it was set aside by the learned District Judge on the ground that although the decree was silent on that point, the help of the pleadings could be taken. The actual words used by the learned District Judge are as follows: - "the perusal of the plaint shows that the suit was filed on the ground of personal necessity and not on the ground that the defendant was a defaulter. This being the case, the application under sec. 12 of the Marwar House Rent Control Act, 1944 is maintainable. " I have given due consideration to the line of reasoning adopted by the learned District Judge and I am unable to find myself in agreement with him. The opening words of sec. 12, which is reproduced above, show that the court can proceed under this section only "when an order of ejectment has been made by a court on the ground that the house is required by the landlord for his own occupation or for the occupation of any person for whose benefit the house is held by him, and the house is not occupied by the aforesaid persons within a period of one month from the date of vacation. . . . . . ". This clearly shows that either the decree for ejectment or the judgment should itself show that the court had passed a decree of ejectment on the ground that the house was required by the landlord for his own occupation or for the occupation of any person for whose benefit the house was held by him. In the plaint it is open to the landlord to take several grounds for ejectment of a tenant. Sec. 11 of the Act shows that a tenant can be evicted from the house on the following four grounds : - (a) that he fails to pay rent for three successive months or is a habitual defaulter. (b) that the house is reasonably and in good faith required by the landlord for his own occupation or of any person for whose benefit the house is held by him in the capacity of a trustee or a guardian ; (c) that the tenant has not been performing any of the conditions of the tenancy; (d) for any other reason which the court may consider sufficient. It was thus open to a court to pass a decree for ejectment on any one of the above grounds. The decree given by the trial court was absolutely silent about the reason on account of which the respondent was ordered to be ejected. The judgment also shows that although the plaintiff had advanced as one of the reasons for ejectment that he wanted the house for his own occupation, but no issue was framed on that point and the court did not mention anywhere in the whole of the judgment that the decree was given because the house was required by the plaintiff for his own occupation or for the occupation of any person for whose benefit the house was held by him. The court framed only two issues of which the second was only for relief. The first issue was "whether the plaintiff had filed the suit for letting out the property to others and enhancing the rent". The burden of this issue was placed on the defendant. The court proceeded to decide that suit as if the plaintiff was entitled to a decree for ejectment in case the defendant was unable to prove that the ejectment was sought for letting out the property to others or for enhancing the rent. The court decided this issue against the defendant and passed a decree of ejectment against him. It was nowhere mentioned that the decree was given because the court came to the conclusion that the house was required by the plaintiff for his own occupation. I do not mean to justify the decree and it was certainly open to the respondent to file an appeal against it and challenge its validity. Having failed to do so, he could not get it set aside by filing an application under sec. 12 saying that one of the grounds advanced by the plaintiff in that suit was that he wanted the house for his own use. It was only in case the decree of ejectment was given on the simple ground that the house was needed by the landlord for his own occupation or for the occupation of the person for whose benefit it was held by him, that an application under sec. 12 could lie. The trial court was correct in dismissing the application and the appellate court should not have in my opinion reversed that decision simply because of the grounds taken by the appellant in his plaint was that he needed the house for his occupation.
(3.) THE appeal is therefore allowed, the judgment and decree of the first appellate court is set aside and the decision of the Munsiff restored. In other words the application under sec. 12 of the Act stands dismissed. THE appellant will receive his costs throughout. .;