Full Judgment Text
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PETITIONER:
HIRALAL MOOLCHAND DOSHI
Vs.
RESPONDENT:
BAROT RAMAN LAL RANCHHODDAS (DEAD) BY LRS.
DATE OF JUDGMENT18/02/1993
BENCH:
YOGESHWAR DAYAL (J)
BENCH:
YOGESHWAR DAYAL (J)
KASLIWAL, N.M. (J)
CITATION:
1993 AIR 1449 1993 SCR (1)1113
1993 SCC (2) 458 JT 1993 (4) 97
1993 SCALE (1)629
ACT:
Code of Civil Procedure, 1908.
Order 23, Rule 3-Decree-When a nullity-Whether mere error in
passing decree makes it a nullity-Word ’nullity’-Meaning of-
Whether provision applicable to proceedings under the Rents
Acts-Compromise Decree-Passing of-Satisfaction of Court as
to existence of statutory ground-Whether can be inferred
impliedly from compromise decree.
Section 47-Compromise decree-Execution of-Whether executing
court can permit the tenant to lead fresh evidence as to
nullity and executability of decree.
Bombay Rents, Hotel and Lodging House Rates Control Act,
1947.
Section 12(3)(a), 13(1)(g) and 13(2)-Eviction of tenant-Non-
payment of rent and bonafide personal use--Compromise
decree-When a nullity and inexecutable-Court’s satisfaction
of existence of statutory grounds whether can be inferred
impliedly from compromise.
HEADNOTE:
The appellant/landlord filed a suit against the respondent-
tenant for recovery of possession of the suit-premises on
the grounds contained in Sections 12(3)(a), (e) and (g) of
the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947. viz., nonpayment of rent for a period of over six
months in spite of notice of demand; nuisance and bona fide
personal use.
In his written statement, the tenant pleaded that the rent
charged was excessive; lie was not in arrears of rent, as
alleged; the landlord did not require the suit premises
reasonably and bona fide; the tenant had a large family; and
he did not cause any nuisance, as alleged, and greater
hardship would be caused to the tenant if the decree for
possession was passed against him than it would be to the
landlord if the decree was not passed.
1114
The trial court framed the issues, but the parties presented
consent terms before the court for passing decree in those
terms. Accordingly, the court passed a compromise decree
making an order below the consent terms that the parties
were present and admitted the terms.
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On the failure of the tenant to deliver possession of the
premises by the due date, as agreed, the appellant-landlord
filed an application for execution. The tenant filed
objections to the executability of the decree and, contended
that an the eviction decree was not executable, as it was a
nullity, and that there was no material before the court
which passed the decree to show the availability of the
various grounds of eviction alleged against the tenant.
The executing court held that the decree was not a nullity
and was executable. This was affirmed by the first
appellate court. However, a Single Judge of the High Court,
in further revision filed by the tenant, held that the
decree was not executable as it was a nullity.
On analysis of the compromise, the High Court held that the
time was given on concession to the tenant to vacate the
premises ie. at the most it could be said that the tenant
may have agreed to handover possession as the landlord
required the premises reasonably and bona fide for personal
use and occupation, but on the basis of this implied
admission, the provisions of Section 13(2) of the Act were
not satisfied; that the condition to be satisfied for
attraction of Section 12(3) (a) was that the tenant had
neglected to make payment of rent until the expiration of
the period of one month after notice as contemplated under
sub-section (2) of Section 12, and though the notice was
given by the landlord to the tenant claiming the total
arrears of rent of Rs.372 and the notice was served on the
tenant in about 8 days, there was no material in the consent
terms, to show that the tenant had given up the contention
that he had not neglected to pay, and that it was for the
landlord to prove that greater hardship would be caused to
him, rather than to the tenant, before he could get decree
for possession on the ground of bona_fide personal
requirement and the landlord had not pleaded in the plaint
to that effect.
Allowing the appeal, preferred by the landlord, this Court,
HELD:1. A decree is said to be a nullity if it is
passed by a court having no inherent jurisdiction. Merely
because a court erroneously pas-
1115
ses a decree or there is an error while passing the decree,
the decree cannot be called a nullity. The decree to be
called a nullity is to be understood in the sense that it is
entry vires the powers of the court passing the decree and
not merely voidable decree. [112 1 F]
2.1.Whenever there is any lawful agreement, the court is
bound lo record the agreement or compromise. There is no
provision in the Act which made Rule 3 of Order 23 of the
Code of Civil procedure inapplicable to proceedings
contemplated by the Act. Nor there is any provision in the
Act which prohibits parties entering into a compromise in
the suit for eviction filed under the Act. [1125B-C]
2.2.There is no doubt that if there is a contest, the court
can pass a decree for eviction only if the court is
satisfied about the existence of grounds mentioned in
Sections 12(3)(a), 13(1)(g) and 13(2). But the satisfaction
can also be interred impliedly. [1123F]
K.K. Chari’ v. R.M. Sheshadhri, A.I.R. 1973 S.C. 1311;
Nagindass v. Dalpatram, A.I.R. 1974 S.C. 471. Roshan lal v.
madan lal A.I.R. 1975 S.C. 2130 and Suleman Noormohammed v.
Umarbhai, A.I.R. 1978 S.C. 952, relied on.
2.3.In the instant case, it is clear from the consent terms
that the tenant agreed about the claim of the arrears of
rent and stated that lie had deposited it partly in the
court. No doubt, in the written statement the tenant had
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taken the plea that the landlord was avoiding to take tile
rent and he was not neglecting to pay, but by the admission
in the compromise terms, the tenant gave up the plea of
tender of rent before the filing of the suit. There was no
material of any tender by money order or otherwise on the
record when the compromise was filed. The burden was on the
tenant to prove the tender of rent before the suit, after
service of notice of demand. The admission contained in the
compromise shows complete admission of the tenant about the
arrears of rent read with the allegation of the landlord in
the petition about the existence of arrears of rent after
service of notice of demand. In the written statement, the
notice of demand had been admitted, but the plea was of
tender of rent. Even a reply was sent to the notice of
demand. Thus, in the absence of any material on the record
of previous tender it can safety be assumed that there was
sufficient material in the light of the agreed terms that
the tenant had made himself liable to be evicted on the
ground contained in Section 12(3) (a)
1116
of the Act [1123G-H, 1124A-C]
2A. The very fact that the tenant asked for accommodation
of time shows that the claim of the landlord for eviction of
the tenant on the ground of his bona fide personal
requirement was impliedly admitted by the tenant Again there
is implied admission of comparative hardship as contemplated
by Section 13(2) of the Act by the tenant. Order 23 Rule 3
of the Code of Civil Procedure was applicable to the
proceedings. [1124D]
2.5.It is thus clear from the terms of the compromise that
there was an Implied admission by the tenant of the grounds
contained in Section 12(3)(a) as well as Section 13(1)(g) of
the Act. [1128G]
3.1.The executing court gave elaborate opportunity to the
tenant while substantiating his objection to the validity of
the decree by permitting him to lead documentary evidence
which is not ordinarily granted. This permission to a
tenant to lead evidence in execution Is totally unwarranted
in the instant case. The executing court is supposed to
have examined the nullity of the decree on the basis of the
record on which It is based. It cannot permit the parties
to lead fresh evidence. [1128H, 1129A-B]
3.2.The High Court was also in error in assuming that the
landlord In a suit for eviction on the ground of bonafide
personal requirement is supposed to have pleaded his own
comparative hardship in the plaint itself Section 13(2)
comes into play at the stage when the court is satisfied
that the ground contained in clause (g) of sub-section (1)
of Section 13 of the Act has been made out. It is at the
stage that the court has to examine the question of
comparative hardship. It was thus not necessary to plead In
the plaint itself Often the parties at the stage of
recording of evidence of bonafide personal requirement also
lead evidence as to the comparative hardship of the landlord
or the tenant But such averments are not required to be
pleaded in the plaint itself to give cause of action to the
landlord to enable him to file a suit for eviction of the
tenant on the ground of his bona fide personal requirement.
[1129C-D]
3.3.The High Court was not right in going into the question
of neglect by the tenant of the demanded arrears of rent
Once the arrears are admitted, it is implied that the tenant
gave up the plea of tender. Surely, the executing court
could not be justified to permit the tenant to lead evidence
of tender by him before the filing of the suit in compliance
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1117
of the notice of demand as contemplated by Section 12(3)(a)
of the Act after the decree. [1129F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No.998 of 1976.
From the Judgment and Order dated 17.6.75 of the Gujarat
High Court in C.R.A. No 594 of 1972.
S.K. Dholakia and Pritam Chand Kapur for the Appellant.
P.S. Shroff and Ms. Shalini Soni for the Respondent.
The Judgment of the Court was delivered by
YOGESHWAR DAYAL, J. This appeal is directed against the
judgment of the Single Judge of the High Court of Gujarat
dated 17th June, 1975 By the impugned judgment the learned
Single Judge set aside the concurrent judgments of the
executing court and the lower appellate court dismissing
objections to the executability of the ejectment decree
passed by the trial court dated 21st March, 1968 on the
basis of a joint compromise petition filed by the parties
and held the ejectment decree inexecutable being a nullity.
It appears that on or about 12th July, 1967 the
appellant/landlord (hereinafter referred to as ’the
landlord’) filed a fuit in the court of the Joint Civil
Judge, Dahod for recovery of possession of the premises
against the respondent/tenant (hereinafter referred to as
’the tenant’) inter alia on the grounds contained in
Sections 12(3) (a) i.e. on the ground of non-payment of rent
for a period of over six months inspite of notice of demand;
13(1) (e) i.e. on the ground of nuisance and 13 (1) (g) i.e.
on the ground of bona fide personal use, besides other
grounds, of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 (hereinafter called ’the Act’)
The tenant filed his written statement on 29th September,
1967 inter alia pleading that the rent charged was
excessive; that he was not in arrears of rent, as alleged;
that the landlord did not require the suit premises
reasonably and bona fide: that the tenant had a large
family; that he did not cause any nuisance, as alleged, and
that greater hardship would be caused to the tenant if the
decree for possession is passed against him than
1118
it would be to the landlord if the decree was not passed.
The trial court framed the issues on 30th November, 1967.
On 21st March, 1968 the parties presented consent terms
before the court for passing decree in those terms. Below
the consent terms the court passed an order "Parties
present and admit compromise". Accordingly the compromise
decree was passed. As per the consent terms the tenant was
to handover possession of the suit promises on or before
31st August, 1971. A translation of the consent terms in
Gujarati reads as follows :-
"We, the parties make, by mutual understanding
compromise as under -
1, the defendant shall hand over the actual
possession of the second storey of the house
bearing City S.No. 614 on dated 31-8-71. And
if, 1, the defendant do not hand over the
possession of the suit property to the
plaintiff accordingly the plaintiff is
entitled to execute the decree. The aforesaid
period is granted to the defendant for his
convenience and accommodation.
2. The amount of’ rent demanded in the suit
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of the suit property plus the amount of mesne
profits plus the amount of house-tax and
education cess comes to Rs. 282 in words
rupees two hundred and eighty two plus the
amount of Rs. 90 for mesne profit from the
date of suit till the date 20-3-68. Thus the
total amount which comes to Rs. 372 becomes
claimable by the plaintiff from the
defendants. Towards the aforesaid amount the
defendant had deposited the amount of Rs. 312
in the Court on dated 2-9-67. He has
deposited the amount of Rs. 10 on dated 21-4-
67 Rs. 30 on dated 18-1-68 and Rs. 20 on dated
21-3-08. Thus total amount of Rs. 372 has
been deposited, and the said amount is to be
accepted by the plaintiff. Therefore upon
receiving the amount of Rs. 372 by the
plaintiff, it shall be considered that the
amount of rent and that of mesne profit has
been received for the period upto the dated
21-3-68.
3. Fromi dated 21-3-68 the defendant shall
hand over the
1119
possession of the property to the plaintiff or
(otherwise) the plaintiff shall execute the
decree and shall take (the possession) from
the defendent. And the Plaintiff shall
recover from the defendant the amount of rent
at a rate of Rs.10 per month and mesne profit
at a rate of Rs.10 per month till the
plaintiff obtains the possession from the said
defendant. And the defendant shall pay to the
plaintiff the mesne profit accordingly. If
the defendant does not pay the mesne profit
accordingly the plaintiff shall execute the
decree and shall recover the amount from the
plaintiff. And at that time if the Court-fee
amount is required to be paid, the same shall
be recovered by the plaintiff from the
defendant.
4. The defendant shall pay to the plaintiff
the amount of sanitation tax and education
cess for the period from 1967-68 till the
defendant hands over possession or the
plaintiff takes possession by executing the
decree, and if the defendant does not act
accordingly the plaintiff shall recover the
same by executing the decree. The plaintiff
shall accept the amount of court-fee, refunded
in this suit, and the defendant shall have no
right thereon.
5. The cost of the parties shall be borne
by themselves.
6. Decree may be drawn against the
defendant in favour of
the plaintiff in the manner stated above.
Sd/- Illegible
Advocate for the Defendant.
Dated 21-3-68. Hiralal Mulchand Doshi
Ramanlal Ranchbodlal Barot.
Sd/- Illegible
Plaintiff’s Advocate"
1120
As the tenant failed to deliver possession of the premises
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by the due date, as agreed, the landlord filed an
application for execution. On receipt of notice of filing
of the execution application, the tenant filed objections to
the executability of the decree and inter alia contended
that an eviction decree was not executable as it was a
nullity. It was further contended that there was no
material before the court which passed the decree to show
the availability of the various grounds of eviction alleged
against the tenant. The executing the court took the view
that the decree was not a nullity and was executable. The
order of the executing court was affirmed by the first
appellate court. However, on further revision by the
tenant, a Single Judge of the High Court accepted the
revision petition and held that the decree was not
executable as it was a nullity.
The High Court while accepting the revision petition noticed
that the possession was sought inter alia on the grounds-(1)
that the landlord required the suit premises reasonably and
bona fide for his personal use and occupation; (2) that the
tenant was in arrears of rent for a period of over six
months and (3) on the ground of nuisance, besides other
grounds. The High Court also noticed that the period for
vacating the premises by 31st August, 1971 was given to the
tenant by way of accommodation. It also noticed that there
is nothing in the consent terms or decree to indicate that
there was any express satisfaction of the court regarding
any of the statutory grounds on the basis of the which the
landlord is entitled to get possession of the premises
either under Section 12 or Section 13 of the Act. But, the
High Court held that, by itself will not be sufficient to
reach the conclusion that the decree is a nullity. The
landlord is entitled to rely upon the implied admissions
either in the decree or in the order itself or if there are
any other materials on the record of the case to indicate
that there were some materials for the court for its
satisfaction regarding existence of any ground contained in
Section 12 or 13 of the Act.
The High Court on analysis of the compromise took the view
the time was given on concession to the tenant to vacate the
premises i.e. at the most it could be possibly said that the
tenant may have agreed to handover possession as the
landlord required the premises reasonably and bona fide for
personal use and occupation. But on the basis of this
implied admission the High Court held that the provisions of
Section 13(2) of the Act were not satisfied. The High Court
also found that Section 12(3)(a) of the Act was applicable
and it is also correct that the arrears of rent claimed for,
1121
had been admitted. The finding of the High Court regarding
arrears of rent is "it is, therefore, evident that the fact
that these arrears of rent were due, has been admitted in
this para 2 of the consent terms. It would, therefore, mean
that so far as the fact that the rent was due for a period
of over six months, which would entitle the landlord to file
a suit for possession under Section 12 of the Act, was
impliedly admitted". After observing this the High Court
took the view that the condition to be satisfied for
attraction of Section 12(3)(a) of the Act is that the tenant
had neglected to make payment of rent until the expiration
of the period of one month after notice as contemplated
under sub-section (2) of Section 12 of the Act. The High
Court also. noticed that the notice was given by the
landlord to the tenant on 14th February, 1967 claiming the
total arrears of rent of Rs.372 and the notice was served on
the tenant on 22nd February, 1967. But it held that there
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was no material in paras 1 and 2 of the consent terms, read
together, to show that the tenant had given up the
contention that he had not neglected to pay. Another reason
given by the High Court for holding the decree to be nullity
on the ground of bona fide personal requirement is that it
was for the landlord to prove that greater hardship would be
caused to him, rather than to the tenant, before he could
get decree for possession on the ground of bona fide
personal requirement. The High Court further took the view
that the landlord had not pleaded in the plaint to that
effect.
It may be noticed that we are dealing with the question of
nullity of a decree because the executing court is bound to
execute the decree and cannot go behind the same unless the
decree passed by it is a nullity. It appears, there is a
lot of confusion as to what is meant by ’decree being null
and void". In the context which we are dealing, a decree is
;.lid to be a nullity if it is passed by a court having no
inherent jurisdiction Merely because a court erroneously
passes a decree or there is an error while passing the
decree, the decree cannot be called a nullity. The decree
to be called a nullity is to be understood in the sense that
it is ultra vires the powers of the court passing the decree
and not merely voidable decree.
It appears the question of validity of an eviction order
based on a compromise was subject matter of numerous
decisions of various High Courts of this country. A study
of Indian case-law on this subject does not disclose any
uniformity of opinion or elucidation of any generally ap-
plicable principle. But the decisions of this Court in K.K.
Chari v. R.M.
1122
Sheshadhri, AIR 1973 S.C. 1311, Nagindass v. Dalpatram, AIR
1974 S.C. 471; Roshan Lal v. Madan Lal, AIR 1975 S.C. 2130
and Suleman Noor-mohammed v. Umarbhai, AIR 1978 S.C. 952
have resolved the conflict and clarified the matter.
Before we embark on the correct principles to be followed,
while dealing with the question of a decree being nullity,
relevant statutory provisions of the Act may be noticed
Section 12(3)(a) read thus :-
"12(3)(a) Where the rent is payable by the
month and there. is no dispute regarding the
amount of standard rent or permitted increase-
,, if such rent or increases are in arrears
for a period of six months or more and the
tenant neglects to make payment thereof until
the expiration of the period of one month
after notice referred to in subsection (2),
the court may pass a decree for eviction in
any such suit for recovery of possession".
Section 13(1) (g) of the Act read thus
"13. When landlord may recover possession.
(1) Notwithstanding anything contained in this
Act but subject to the provisions of sections
15 and 15A, a landlord shall be entitled to
recover possession of any premises if the
Court is satisfied
(a)
(b)
(c)
(d)
(g)that the premises are reasonably and
bona fide required by the landlord for
occupation by himself’or by any
1123
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person for whose benefit the premises are held
or where the landlord is a trustee of public
charitable trust that the premises are
required for occupation for the purposes of
the trust; or
(h).........
(i)............
(k)...........
Section 13 (2) of the Act read thus
"13 (2) No decree for eviction shall be
passed on the ground specified in clause (g)
of sub-section (1) if the Court is satisfied
that, having regard to all the circumstances
of the case including the question whether
other reasonable accommodation is available
for the landlord or the tenant, greater
hardship would be caused by passing the decree
than by refusing to pass it.
Where the court is satisfied that no hardship
would be caused either to the tenant or to the
landlord by passing the decree in respect of a
part of the premises, the court shall pass the
decree in respect of such part only".
There is no doubt that if there is a contest the court can
pass a decree for eviction only if the court is satisfied
about the existence of grounds mentioned in two sections
quoted hereinabove. But the satisfaction can also be
inferred impliedly. It is clear from the reading of the
plaint and the written statement that it was a common case
that the agreed rate of rent was Rs. 10 per month. It is
clear from the reading of the consent terms that the tenant
agreed about the claim of the arrears of rent and stated
inter alia that he had deposited it partly in the court on
2nd September, 1.967. It is true that in the written
statement the tenant had taken the plea that the landlord
was avoiding to take the rent and he was not neglecting to
pay. But by the admission in the compromise terms. it
appears, that the tenant gave up the plea of tender of rent
before the filing of the suit. There was no material of any
tender by money order or otherwise on the record
1124
when the compromise was filed. All sorts of pleas are taken
in the pleadings but it does not debar the parties to give
up any of the pleas. On the facts of the case it is clear
that the burden was on the tenant to prove the tender of
rent before the suit, after service of notice of demand.
The admission contained in the compromise shows complete
admission of the tenant about the arrears of rent read with
the allegation of the landlord in the petition about the
existence of arrears of rent after service of notice of
demand. In the written statement the notice of demand had
been admitted but the plea was of tender of rent. Even a
reply was sent to the notice of demand. Thus in the absence
of any material on the record of previous tender it can
safely be assumed that there was sufficient material in the
light of the agreed terms that the tenant had made himself
liable to be evicted on the ground contained in Section 12
(3) (a) of the Act. Even on the second ground of eviction,
namely bona fide personal requirement of the landlord, the
very fact that the tenant asked for accommodation of time
shows that the claim of the landlord for eviction of the
tenant on the ground of his bona fide personal requirement
was impliedly admitted by the tenant. Again there is
implied admission of comparative hardship as contemplated by
Section 13 (2) of the Act by the tenant. Order 23 Rule 3 of
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the Code of Civil Procedure was applicable to the
proceedings. Rule 3 of the Order 23 reads as followed:
"Compromise of suit Where it is proved to the
satisfaction of Court that a suit has been
adjusted wholly or in part by any lawful
agreement or compromise, in writing and signed
by the parties or where the defendant
satisfies the plaintiff in respect of the
whole or any part of the subject-matter of the
suit, the Court shall order such agreement,
compromise or satisfaction to be recorded, and
shall pass a decree in accordance therewith so
far as it relates to the parties to the suit,
whether or not the subject-matter of the
agreement, compromise or satisfaction is the
same as the subject-matter of the suit:
Provided that where it is alleged by one party
and denied by the other that an adjustment or
satisfaction has been arrived at, the Court
shall decide the question; but no adjournment
shall be granted for the purpose of deciding
the question, unless the Court, for reasons to
be recorded,
1125
thinks fit to grant such adjournment.
Explanation An agreement or compromise which
is void or voidable under the Indian Contract
Act, 1872 (9 of 1872), shall not be deemed to
be lawful within the meaning of this rule."
It is clear that whenever there is any lawful agreement the
court is bound to record the agreement or compromise. There
is no provision in the Act which made rule 3 of Order 23 of
the Code of Civil Procedure inapplicable to proceedings
contemplated by the Act. Nor there is any provision in the
Act which prohibits parties entering into a compromise in
the suit for eviction filed under the Act.
In KK Chari v. R.M. Sheshadri (Supra) this Court took the
view that even if the satisfaction of the court as to the
availability of the ground of eviction is not recorded in
the eviction order it will not conclude the matter. That
the court was so satisfied can also be considered from the
point of view whether a stage had been reached in the
proceedings for the court to apply its mind to the relevant
question. Other materials on record can also be taken into
account to find out if the court was so satisfied. Though
Alagiriswamy, J. agreed with the proposed order but thought
it necessary to add a few words of his own. He observed :-
"The law on this subject has gone into a
labyrinth and think it is time we took a hard
look at it and laid down the correct
position".
He referred to English and Indian cases and was inclined to
hold that there should be no objection to a compromise
eviction order in rent control proceedings provided it is in
accordance with the Act, i.e., only the landlord has asked
for possession of the premises on one of the grounds laid
down in the Act. He agreed with the majority judgment on
the grounds stated therein. He, however, thought that the
matter would be considered in the light of what he has said
when a proper occasion arises.
Nagindass v. Dalpatram was a case under Section 28 of the
Bombay Act (No. 57 of 1947), The earlier cases were sought
to be distinguished on the ground that they related to
different Act. That line of argument was rejected on the
ground that object of all these Acts is the same and that
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1126
policy element is involved in the enactments relating to
rent control in general, both in England and India. There
the suit for possession was brought on the ground of non-
payment of rent as well as bona fide requirement of the
landlord. In the memo of compromise, the tenant agreed to
pay certain sums as arrears of rent. The immediate delivery
of possession was postponed for sometime till the plaintiffs
were able to provide lease of other premises for the tenant.
It appears that no evidence had been recorded before the
compromise order was passed. When the time for execution
came, the tenant raised objections under Section 47 of the
Code of Civil Procedure.
There being no evidence recorded on the merits before the
compromise order was passed, the court had to consider the
nature and extent of material on which the Court could be
said to have satisfied itself about the existence of the
grounds. The court inferred that there was implied
admission in the compromise which provided for payment of
arrears of rent by the tenant in respect of the first ground
and that the satisfaction of the court in the matter may be
based on an admission by the tenant. The court observed:-
"From a conspectus of the’ cases cited at the
bar, the principle that emerges is, that if at
the time of the passing of the decree, there
was some material before the Court, on the
basis of which, the Court could be prima facie
satisfied, about the existence of a statutory
ground for eviction, it will be presumed that
the Court was so satisfied and the decree for
eviction apparently passed on the basis of a
compromise, would be valid. Such material may
take the shape either of evidence recorded or
produced in the case, or, it may partly or
wholly be in the shape of an express or
implied admission made in the compromise
agreement, itself Admissions, if true and
clear, art, by, far the best proof of the
facts admitted. Admissions in pleadings or
judicial admissions, admissible undersection
58 of the Evidence Act, made by the parties or
their agents at or before the hearing of the
case, stated on a higher footing that?
evidentiary admissions. The former class of
admissionss are fully binding on the party
that makes them and constitute a waiver of
proof. The by themselves can be made the
foundation of the rights
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of the parties. On the other hand,
evidentiary admissions which are receivable at
the trial as evidence, are by themselves, not
conclusive. They can shown to be wrong.’
The Court also considered the extent to which the executing
court could go into the matter. It was observed that if the
decree on the face of it discloses some material, on the
basis of which the Controller could be satisfied with regard
to the existence of a statutory ground for eviction, it was
not open to the court to go further and it must accept it
and execute the decree as it stands. If, on the face of it,
the decree does not show the existence of such material or
jurisdictional fact, the Executing Court may look to the
original record of the trial court to ascertain whether
there was, any material furnishing a foundation for the
trial court’s jurisdiction to pass the’ decree it did. The
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moment it finds that prima facie such material existed, its
task is complete. It is not presumed or expressed finding
of the trial court on the basis of that material. All that
it has to see is whether there was some material on the
basis of which the Rent Court could have as distinguished
from must have been satisfied as to the statutory ground
for eviction. To allow the Executing Court to go beyond
that limit, would be to exalt it to the status of a super
Court sitting in appeal over the decision of the Rent Court.
In Roshan Lal v. Madan Lal, (supra) the landlord had filed a
suit against the tenant for eviction and for some other
reliefs on grounds failing within Section 12(1)(f) of the
M.P. Accommodation Control Act, 1961 i.e. bona fide personal
requirement of no,,-residential premises. The tenant denied
this assertion. Some evidence was adduced. Eventually a
decree, on the basis of a compromise, was passed. The
tenant agreed to vacate the shop by 31st December, 1970. On
his failure to do so the respondent took out execution. The
tenant filed objection that the decree was a nullity.
Paragraph I of the compromise petition stated "that due to
the necessity of the plaintiffs for their own business of
opening grocery shop decree may be granted to them against
the defendants". The plaint also mentioned that the
landlord had no reasonable accommodation. The court implied
an admission of that fact also, even though the compromise
did not mention it. The court rejected the tenants’
contention, that there was admission of the positive aspect
only and not of the negative aspect. The appeal was
dismissed. The court also upheld the applicability of Order
23 Rule 3 to suit governed by the special statutes. The
Court observed that
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"If the agreement or compromise for eviction
of the tenant is found, on the facts of a
particular case, to be in violation of a
particular Rent Act, the Court would refuse to
record the compromise as it will not be lawful
agreement. If on the other hand, the Court is
satisfied on consideration of the terms of the
compromise and, if necessary, by considering
them in the context of the pleadings and other
materials in the case, then the agreement is
lawful, as in any other suit, so in an
eviction suit, the Court is bound to record
the compromise and pass a decree in accordance
therewith."
Suleman Noormohammed v. Umarbhai (supra) was again a case in
which suit was brought on the ground of non-payment of rent
and bona ,ride personal necessity under the relevant
provisions for the Act. The decree for possession was
passed on the basis of a compromise under which the
judgment-debtor was to handover possession by a future date.
On his failure to do so, execution application was filed and
the judgment-debtor challenged the validity of the decree.
The order did not mention that the Court was satisfied about
the grounds for eviction. The court read pleadings and came
to the conclusion that there was no serious dispute to be
tried and if a decree for possession would have been passed
in invitum the tenant would not have got three years time to
vacate the premises; that he, therefore, agree to suffer a
decree by consent and gained three years time under it. The
Court also relied on the presumption that every compromise
under Order 23 rule 3 of the Code of Civil Procedure shall
be presumed to be lawful unless it is proved to the
contrary. An admission by the tenant about the existence of
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a statutory ground, expressly or impliedly, will be
sufficient and there need not be any evidence before the
Court on the merits of the grounds before the compromise
order is passed. If there is an admission of the tenant it
will not be open to him to challenge its correctness as the
admission made in judicial proceedings are absolutely
binding on the parties. At any rate decree cannot be called
a nullity to enable the executing court to go behind it.
It is clear from the terms of the compromise in the present
case that there was an implied admission by the tenant of
the grounds contained in Section 12(3)(a) as well as Section
13(1)(g) of the Act.
We also notice that the executing court gave elaborate
opportunity
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to the tenant while substantiating his objection to the
validity of the decree by permitting him to lead documentary
evidence which is not ordinarily granted. This permission
to a tenant to lead evidence in execution is totally
unwarranted in this case. The executing court is supposed
to have examined the nullity of the decree on the basis of
the record on which it is based. It cannot permit the
parties to lead fresh evidence.
The High Court was also in error in assuming that the
landlord in a suit for eviction on the ground of bona fide
personal requirement is supposed to have pleaded his own
comparative hardship in the plaint itself. Section 13(2)
comes into play at the stage when the court is satisfied
that the ground contained in clause (g) of sub-section (1)
of Section 13 of the Act has been made out. It is at that
stage that the Court has to examine the question of
comparative hardship. It was thus not necessary to plead in
the plaint itself Often the parties at the stage of
recording of evidence of bonafide personal requirement also
lead evidence as to the comparative hardship of the landlord
or the tenant. But such averments are not required to be
pleaded in the plaint itself to give cause of action to the
landlord to enable him to file a suit for eviction of the
tenant on the ground of his bona fide personal requirement.
The High Court was not right in going into the question of
neglect by the tenant of the demanded arrears of rent. Once
the arrears are admitted, it is implied that the tenant gave
up the plea of tender. Surely the executing court could not
be justified to permit the tenant to lead evidence of tender
by him before the filing of the suit in compliance of the
notice of demand as contemplated by Section 12(3)(a) of the
Act after the decree.
For the aforesaid reasons the impugned judgment of the High
Court is set aside and the judgments of the lower appellate
court as well as the executing court are restored. The
appellant/landlord would be entitled, in the circumstances
of the case, to warrants of possession forthwith. The
appellant is also entitled to the costs throughout.
N.P.V. Appeal allowed.
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