PULAKURTHI HUSSAIN SAHIB v. S. GURURAJA RAO — 1970 DIGILAW 56 (KAR)

( 1 ) THE appellant before this Court is the tenant in HRC 54 of 1965. A petition was filed for his eviction under S. 21 (1) (a) of the Mysore Rent control Act of 1961, on the ground that he had committed default in payment of rent. While the case was pending a joint memo of compromise was filed by the parties. According to the memo the petition was to be allowed and tenant to be given 3 months time to vacate the premises. As the tenant consented to a decree for vacating the premises, the landlord agreed to waive arrears of rent. The Court passed a decree in terms of the joint memo. As the appellant tenant did not vacate the premises after three months, execution proceedings were taken against him. In the said proceedings the appellant contended that the decree passed against him was a nullity and it cannot be executed. The executing Court overruled his objection. The tenant filed an appeal before the learned District Judge of bellary and the same was dismissed. This appeal is directed against the said decision of the learned District Judge. ( 2 ) SRI B. Ramachandra Rao, learned Counsel appearing on behalf of the appellant has contended, that the decree passed in the case is opposed to the provisions of S. 21 of the Mysore House Rent Control Act 1961 (which will be hereinafter called the Act) and is a nullity. He also argues that the said compromise decree being unlawful and meant to defeat provisions of law is hit by S. 23 of the Indian Contract Act, and no such decree can be passed even under Or. 23, R. 3 CPC. He has also contended that the learned District Judge has no jurisdiction to hear the appeal as it is an order passed under S. 47 of the CPC. on the execution side, and under s. 20 of the Civil Courts Act, the appeal lies to the Civil Judge and not to the District Judge. He has strongly relied on a decision of the Supreme court in Kaushalya Devi v. K. L. Bansal, (1969)2 SCJ 145 in support of his contention that the decree passed in the case is a nullity and cannot be executed. He has strongly relied on a decision of the Supreme court in Kaushalya Devi v. K. L. Bansal, (1969)2 SCJ 145 in support of his contention that the decree passed in the case is a nullity and cannot be executed. Sri S. Shivaswamy, learned Counsel appearing on behalf of the respondent has contended that the decree passed is a consent decree on a joint memo filed by the parties and their Counsel. The appellant has enjoyed the benefits under the said decree. The appellant who got the benefit of waiver of arrears of rent and three months time to vacate the premises, cannot now turn round and say the decree is unenforceable. He is estopped from doing so. Any objection must have been taken at the time of the compromise and not at the time of the execution. He has relied on a decision of this Court reported in Harischandra v. Govind, (1969)1 Mys. L. J. 458. He argues that the learned District Judge had jurisdiction to hear the appeal. Under sub-clause (2) of S. 2 CPC. , an order passed under S. 47 is a decree. Under s. 96 CPC. an appeal lies from every decree passed by the Court to the court authorised to hear appeals from the decision of such Court. Under s. 48 of the Act, the District Judge is the authority to hear appeals. He has relied on a decision in Winnifred Mathias v. Louisa, (1968)1 Mys. L. J. 573 in support of his contention. He has also strenuously contended that the appellant having entered into compromise and got benefit out of it, is estopped from contending that the decree is invalid. By his conduct he is precluded from questioning the decree. It is not open to the appellant to approbate and reprobate. He has cited before me in 1964 Mysore Law Journal (Supp.) page 821 (4), 1960 Mysore Law Journal, page 544 (5), 6 Indian Cases 813 (6), all India Report 1936 Madras page 856 (7), 1936 (1) King's Bench 203 (8), and A11 India Reporter 1935 Calcutta page 816 (9), in support of his said contention. ( 3 ) THE joint memo filed by the parties reads as follows: (1) It is prayed that the petition may be allowed without costs and respondent be given three months time to vacate the suit premises. ( 3 ) THE joint memo filed by the parties reads as follows: (1) It is prayed that the petition may be allowed without costs and respondent be given three months time to vacate the suit premises. (2) As the respondent is consenting to a decree for vacating the premises the petitioner agrees and waives the arrears of rent due by the respondent. ( 4 ) THE decretal order passed in the case reads as follows:"this petition coming on before me this day for final disposal upon perusing the petition and the material papers connected therewith and upon hearing the arguments of Sri R. Aswatha Rao, Advocate for the petitioner and of Sri H. Mallikarjuna Goud, Advocate for the respondent and the same having stood over to this day for consideration the Court allowed the petition, in terms of the joint memo and the joint memo is herewith attached. 2. This Court doth order and decree that three months time is given to the respondent to deliver the vacant possession of the petition schedule mentioned premises to the petitioner 3. This Court further ordered and decreed that each party do bear their costs. " ( 5 ) IN Kaushalya Devi v. Bansal (1) the plaintiff instituted proceedings for eviction against the tenant on the grounds that he wanted the premises bona fide for his own occupation, that the defendant had already owned a house in Delhi and that the defendant had defaulted in payment of rent When the proceedings were pending a compromise was effected between the parties and the Court passed a decree in terms of the compromise. Though the defendant was given more than two years time to vacate the premises, the defendant did not vacate the premises, but he challenged the validity of the decree saying that it had been passed in contravention of the provisions of Section 13 (1) of the Delhi and Ajmer rent Control Act of 1952, and hence the decree was a nullity. Their Lordships of the Supreme Court upheld the contention of the defendant and held that the decree was a nullity as the order passed on the basis of the compromise did not indicate that any of the statutory grounds mentioned in S. 13 (1) of the Act exist. Their Lordships of the Supreme Court upheld the contention of the defendant and held that the decree was a nullity as the order passed on the basis of the compromise did not indicate that any of the statutory grounds mentioned in S. 13 (1) of the Act exist. Their Lordships observed as follows:"the High Court, on revision, held that the decree was a nullity as the order passed on the basis of the compromise did not indicate that any of the statutory grounds mentioned in S. 13 of the Act existed. In Bahadur Singh's case (C. A. Nos. 2466 and 2468 of 1966, dated 16th October 1968), this Court held that the decree passed on the basis of an award was in contravention of S. 13 (1) of the Act because the Court had passed the decree in terms of the award without satisfying itself that the ground of eviction existed. Bachawat, J. speaking for the Court, observed that "on the plain wording of Sec. 13 (1) the court was forbidden to pass the decree. The decree is a nullity and cannot be enforced in execution". This Court, accordingly, declared inter alia that "the decree in so far as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed. " the present case is also governed by the provisions of S. 13 (1) of the Act, and, as we have said before, this appeal must fail, in view of the judgment of this Court in Bahadur Singh's case. In the result the appeal is dismissed but there will be no order as to costs. " ( 6 ) THE decree passed in this case does not indicate any of the statutory grounds mentioned in S. 21 of the Act, for eviction, existed. The tenant disputed that there were anv arrears of rent and if there were any, the same has been waived by the landlord. The relevant provisions of S. 21 read as follows:"21. " ( 6 ) THE decree passed in this case does not indicate any of the statutory grounds mentioned in S. 21 of the Act, for eviction, existed. The tenant disputed that there were anv arrears of rent and if there were any, the same has been waived by the landlord. The relevant provisions of S. 21 read as follows:"21. Protection of tenants against eviction: - (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the racovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant: provided that the Court may on an application made to It, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely :- (a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of payment for the arrears of rent has been served on him by the landlord by tender or delivery either personally to the tenant or to a member or servant of his family at his residence (or if such tender or delivery is not practicable) by affixture to a conspicuous part, of the premises: **** (2) (a) No order for the recovery of possession of any premises shall be made on the ground specified in Cl. (a) of the proviso to sub-sec (1) if the tenant makes payment or deposit of rent as required by clause (b) of this sub-section: provided that no tenant shall be entitled to the benefit under this clause, if, having obtained such benefit once in respect of any premises he again makes a default for the payment of rent of those premises for three consecutive months. (b) In every proceedings for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-sec. (b) In every proceedings for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-sec. (1), the Court shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit in the Court within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit month by month, by the fifteenth of each suceeding month a sum equivalent to the rent at that rate. " ( 7 ) IT is clear from what has been stated above, the decree does not indicate that any arrears of rent were due from the appellant to justify an order being passed under sub-clause (a) of S. 21. Even if there were any arrears of rent, as per sub-clause (2) (a) of the said section, no order for recovery of possession of any premises shall be made by the Court, if the tenant makes payment or deposits rent as required by sub-clause (2) (a ). According to sub-clause (b) of sub-sec. (2), the Court is bound to grant one month's time for the tenant to pay all arrears of rent. Only after granting such time, it is entitled to pass an order of eviction. It is therefore clear from what has been stated above, that the decree passed in this case is opposed to the provisions of Section 21 of the Act. ( 8 ) SRI Shivaswamy, has contended that the Supreme Court decision relates to S. 13 (1) of the Delhi and Ajmer Rent Control Act. Under the said Act the Court must be satisfied that the grounds exist. In the Mysore act it is not so. The Mysore Act only refers to the grounds and not to the satisfaction It is also argued that in the Delhi Act, provisions of the cpc. have not been made applicable. Here there were arrears of rent and this is a ground for eviction under sub-clause (a) of S. 21, and the same has been complied with Sub-sec. The Mysore Act only refers to the grounds and not to the satisfaction It is also argued that in the Delhi Act, provisions of the cpc. have not been made applicable. Here there were arrears of rent and this is a ground for eviction under sub-clause (a) of S. 21, and the same has been complied with Sub-sec. (2) of S. 21 refers only to matters of procedure. If it is not complied with, the decree will not be null and void, but would only be illegal. As held in 1960 Mysore Law Journal p. 544 (5), the decree was only illegal and unless it is duly set aside the decree can be enforced. ( 9 ) THERE is no force in the said contentions urged by learned Counsel for the respondent. The wording of sub-sec. (1) of S. 13 of the Delhi and ajmer Rent Control Act is similar to S. 21 (1) (a) of the Mysore Act. The said section also states that notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for recovery of possession of any premises shall be passed by any Court unless the conditions mentioned in the said section are complied with. As already pointed out the decree does not mention any grounds of eviction referred to by S. 21 of the Act. Sub-sec. (2) of S. 21 of the Act is equally mandadatory in nature and it says even if there were arrears of rent no order for recovery of possession of any premises shall be made unless the provisions of sub-clause (a) and (b) are complied with. The Supreme Court has clearly laid down in Kaushalya Devi's case (1) mentioned above, that if the statutory grounds are not mentioned in the decree, the decree is a nullity and cannot be enforced in execution. Their Lordships have clearly laid down in a case like that, the decree is a nullity. ( 10 ) IN view of my finding that in the instant case the decree passed is a nullity, there is no need to consider the various contentions urged by learned Counsel and the decisions cited by them. ( 11 ) IN the result, I allow the appeal and set aside the decree passed by the prinicipal Munsiff, Bellary, in HRC. No. 54 of 1965, as the same is a nullity and cannot be executed. ( 11 ) IN the result, I allow the appeal and set aside the decree passed by the prinicipal Munsiff, Bellary, in HRC. No. 54 of 1965, as the same is a nullity and cannot be executed. I direct further proceedings in HRC. No. 54 of 1965 be continued, and the case disposed of expeditiously. There will be no order as to costs. --- *** --- .