T. K. Moidu v. Jainbu Bibi — 1971 DIGILAW 198 (MAD)

Judgment :- The plaintiff is the appellant. The suit was filed by him for a declaration that he was a tenant under the defendant In respect of an extent of 1132 sq. ft. comprised in T.S. No. 733/1 with the building thereon bearing door No. 2 F2 F2 G on the Palnl-Dlndign) Road, Paini town. The facts which are relevant for the disposal of this second appeal are these. The defendant let eat the premises to the plaintiff on lease on a monthly rental of Rs. 65 in the year 1952. The plaintiff was running a hotel therein by name Du bar Hotel. In 1960 the defendant (landlady) filed H.R.C. No. 8 of 1960 for eviction of the tenant (plaintiff) on the ground of arrears of rent and sub-letting. In those proceedings the landlady-defendant and the tenant-plaintiff entered into a compromise. The compromise decree runs as follows: “The parties have agreed to compromise the matter and have put into court a petition of compromise (I.A. 12 of 1960) and prayed to pass an order in accordance with the terms thereof, the court doth order as follows: 1. That the respondent shall have a right to enjoy the suit bullding for a period of 3 years from today and pay a sum of Rs. 81.62 on 15th April 1961 (rent payable upto 15th Starch 1961 having been adjusted) and pay Rs. 100 per month as compensation to be payable on 15th of each English month from 15th May 1961; 2. That the respondent do vacate the suit bullding at the end of the third year; 3. That In default of payment of the amount for any one month as aforesaid in clouse 1 supra the petitioner is at liberty to execute the order and oviduct the respondent from the suit building Irrespective of the remaining period; 4. It is farther ordered that if the respondent failed to vacate the suit building at the end of the third rear as aforesaid in clause 2 supra, the petitioner is at liberty to execute the order and recover possession of the suit building”. The terms of the compromise had also been set out in the decree. It is farther ordered that if the respondent failed to vacate the suit building at the end of the third rear as aforesaid in clause 2 supra, the petitioner is at liberty to execute the order and recover possession of the suit building”. The terms of the compromise had also been set out in the decree. The first clause of the compromise provided as follows: Tamil The plaintiff filed the silt on the ground that the clause relating to eviction in the come promise memo was entered late in terrorem so as to see that the plaintiff did not make any default and was within the control of the defendant, that it was not Intended to give effect to and that even at that time It was agreed that the plaintiff might continue as a tenant on a rent of Rs. 100 per month for a period of three years and later on the rent should be increased. Subsequently the defend donts son approached the plaintiff demanding him to pay higher rent at the rate of Rs. 125 per month and that at that time a panchayat was convened In the presence of Syed Mohammed son of Shalk Abdnl Kader and one Siva-sabramanlam son of Ganapathla Filial, and It was agreed by the plaintiff and on behalf of the defendant that after 16th December 1963, that is after the expiry of the period of three years, the plaintiff should pay a rent of Rs. 125 per month and continue as tenant In the suit property. But, contrary to that understanding, the defendant was trying to take eviction proceedings against the plaintiff and hence the plaintiff filed the suit for a declaration that he continued to be the tenant of the defendant. He also contended that as a tenant he was entitled to the benefit of the Madras Buildings (Lease and Rent Control) Act and that he could not be evicted in law except for the reasons mentioned In S. 10 of the Act. The trial court accepted the case of the plaintiff and decreed the suit. On appeal by the defendant, the lower appellate court dismissed the suit holding that the compromise order in HRC No. S. of 1960 was quite legal and valid and that there was no fresh tenancy created as pleaded by the plaintiff, and on that ground allowed the appeal. On appeal by the defendant, the lower appellate court dismissed the suit holding that the compromise order in HRC No. S. of 1960 was quite legal and valid and that there was no fresh tenancy created as pleaded by the plaintiff, and on that ground allowed the appeal. The plaintiff has filed the present second appeal. The learned counsel for the appellant did not challenge the findings of the lower appellate court that the tenancy agreement of August, 1962, pleaded by the plaintiff was set tree or valid. But he submitted that the compromise decree, Ex. B10, dated 16th December, 1960, was a nullity and that the plaintiff continued to be a tenant. He rolled on the decision in R.M. Seshadri v. K.K. Chari (1971) 1 M.L.J. 90 in support of his argument that the consent decree Ex. B10 was a nullity and did not put an end to the relationship of landlord and tenant. That was also a case in which the landlord and tenant entered Into a compromise and by consent eviction was ordered granting tome time to the tenant to vacate. While allowing the contention of the tenant that the compromise decree was a nullity and could not be enforced, the learned Judge observed: “In my view, when the Legislature has, in clear and unmistakable language, restricted the jurisdiction of the Rent Controller to pass orders of eviction only on stated ground, he cannot pass an order of eviction on the basis of a compromise or on an agreement between the parties or on the basis of the tenants submission to an order of eviction. It is well established that no agreement between the parties can give the court a jurisdiction which the Legislature said it is not to exercise”. Mr. R. Gopalaswami Iyengar, the learned counsel for the respondent, strenuously cons tended that there was no bar on the court in acting on an admission and passing a decree, on the admission of the tenant. He veiled on the observations of Jenkins L.J. In Middleton v. Baldock (1950) 1 All. B.R. 708. Mr. R. Gopalaswami Iyengar, the learned counsel for the respondent, strenuously cons tended that there was no bar on the court in acting on an admission and passing a decree, on the admission of the tenant. He veiled on the observations of Jenkins L.J. In Middleton v. Baldock (1950) 1 All. B.R. 708. In particular he relied on the clause in the compromise which reads: Tamil This, according to the learned counsel for the respondent, is an admission of the tenant that there were arrears of rent which the tenant had wilfully defaulted to pay and that, therefore, on this admission the court could pass a decree for eviction. I do not agree that this clause in the compromise accepts arrears of rent and also wilful default in payment of rent. But even then the learned counsel for the respondent contended that, in a case where the respondent had agreed to submit to an order for eviction, there was no need for the Rent Controller again to say that there were arrears of rent, and that the default in the payment of the arrears was wilful, and on that ground he wanted to distingulsh the decision in R.M. Seshadri v. K.K. chart (1971) 1 M.L.J. 90 . The learned Judge in that case had calendered this aspect also. I respectfully agree with him and hold that, even If there was enough material before the court when it passed the order of eviction by consent, so long as It had not applied its mind and given its decision in the matter whether the landlord had established any one of the grounds of eviction as set out in the Act, the eviction order cannot be held to be so order passed on merits. Similarly, even in a case where the tenant bona fide admits that the ground of eviction existed, the Rent Controller must apply his mind and hold that the ground of eviction put forward by the landlord existed and that he was entitled to an eviction order, without merely relying on the compromise. I, therefore, allow the second appeal. But there will be no order as to costs. Leave granted.