LAXMIBAI v. AMBAJAPPA — 1973 DIGILAW 67 (KAR)

( 1 ) THE petitioner in this revision petition is the tenant in occupation of a premises bearing CTS No. 1635/69 situated in Gadag. The respondents purchased the said property under a sale deed dated 19-12-1969 from its previous owner. Thereafter they terminated the tenancy of the petitioner by issue of a notice as required by law and filed a petition in HRC. No. 15/71 on the file of the Additional Munsiff, Gadag, for eviction of petitioner. In the course of their petition, they alleged that they required the premises reasonably and bona fide for their use and occupation, and that the premises were reasonably and bona fide required by them for the purpose of demolition and such demolition was to be made for erecting a new building in place of the premises sought to be demolished. It was also allleged that the petitioner was in arrears of rent. In effect they based their case on clauses (a), (h) and (j) under proviso to sub-sec. (1) of S. 21 of the mysore Rent Control Act, 1961 (hereinafter called the Act ). The petitioner resisted the said petition. In the course of the trial, the respondents examined two witnesses and the petitioner examined herself as a witness. Six documents were marked on behalf of the respondents. On the basis of the evidence placed before him, the learned Munsiff came to the conclusion that the petitioner was liable to be evicted on the grounds mentioned in clauses (a), (h) and (j) under proviso to S. 21 (1) of the Act. The learned Munsiff directed the petitioner to hand-over vacant possession of the premises to the respondents within three months from the date of the order i. e. within 6-7-1972. Aggrieved by the order of the learned Munsiff, the petitioner filed an appeal under S. 48 of the Act before the District judge, Dharwar in HRCA No. 51/72. The appeal was filed beyond time. Along with the appeal, an application, IA. No. 1, was filed for the condonation of the delay in filing the appeal. He also filed another application, ia. No. 2, praying for the stay of the execution of the order passed by the learned Munsiff during the pendency of the appeal. On 5-8-1972 the learned district Judge took up for consideration the interlocutory applications. No. 1, was filed for the condonation of the delay in filing the appeal. He also filed another application, ia. No. 2, praying for the stay of the execution of the order passed by the learned Munsiff during the pendency of the appeal. On 5-8-1972 the learned district Judge took up for consideration the interlocutory applications. ( 2 ) ON that day both the parties were represented by their Counsel before the learned District Judge. The relevant part of the order sheet in the appeal dt. 5-8-1972 reads as follows:" Heard I. A. and appeal. Both the Counsel agree that the I. A. be allowed for reasons stated in the affidavit. Hence allowed, condoned. Further the Counsel for appellant submits that the tenant be given time for three months to vacate. The other side has no objection. They filed a pursis. Hence appeal dismissed, but the tenant is granted three months time from today to vacate. No costs. "aggrieved by the above order of the learned District Judge, the petitioner has filed this revision petition. Sri Thipperudrappa, the learned Counsel for the petitioner, argued that the order passed by the learned District Judge was without jurisdiction, and, therefore, it was a nullity. Elaborating the above contention, he submitted that it was not open to the learned District Judge to pass an order dismissing the appeal filed against the order of eviction passed under the Act without giving reasons in support of his order and without satisfying himself that the grounds on which the respondents had sought the eviction of the petitioner had been established. In support of his case, he relied upon the decision of the Supreme Court in Ferozi Lal Jain v. Man. Mal AIR. 1970 SC. 794. That was a case in which an order had been passed by the Court of first instance before which a petition for eviction had been filed on the basis of a compromise arrived at between the landlord and the tenant. The ground on which the eviction of the tenant was sought was that the tenant had unauthorisedly sub-let the premises, and, therefore, was liable to be evicted in accordance with S. 13 of the Delhi and Ajmer Rent Control Act, 1952. The compromise did not make any reference to the alleged fact of sub-letting which had been denied by the tenant in the course of the pleadings. The compromise did not make any reference to the alleged fact of sub-letting which had been denied by the tenant in the course of the pleadings. ( 3 ) IN the circumstances of that case, the Supreme Court was of the opinion that the jurisdiction of the Court to pass a decree for recovery of possession of any premises to which the Delhi and Ajmer Rent Control act was applicable depended upon its satisfaction that one or more of the. grounds mentioned in S. 13 (1) had been proved. The Supreme Court was further of the opinion that where the Court had proceeded solely on the basis of the compromise arrived at between the parties, the Court was not competent to pass the decree. The Supreme Court finally concluded that the decree passed by the Court on the basis of the compromise was a nullity. ( 4 ) SRI K. I. Bhatta, the learned Counsel for the respondents, relied upon a later decision of the Supreme Court rendered in K. K. Chari v. R. M. Seshadri CA. 447171 dt. 6-3-1973 SC, and contended that the decision of the Supreme Court in Jain's case (1) was clearly distinguishable from the facts of the present case. ( 5 ) THE facts of Chari's case (2) are these: The appellant, who was the landlord, had filed a petition for eviction against the respondent, who was the tenant before the Court of Small Causes, Madras, under the provisions of the madras Buildings (Lease and Rent Control) Act, 1960. The appellant had stated in the course of his petition for eviction that he required the premises for his bona fide use and occupation. After the examination of the appellant was over, the parties entered into a compromise. In the memo of compromise filed by the parties, it was mentioned that the respondent had withdrawn: his defence in the aforesaid petition and was submitting to a decree for eviction unconditionally. It is unnecessary to refer to the other clauses of the memo of compromise for the purpose of this case. On the basis of the said compromise, a decree for eviction was passed by the Court of Small causes. When the said decree was sought to be executed, the petitioner pleaded by way of objection to the execution petition that the decree being one passed on a compromise was a nullity and hence was not executable. On the basis of the said compromise, a decree for eviction was passed by the Court of Small causes. When the said decree was sought to be executed, the petitioner pleaded by way of objection to the execution petition that the decree being one passed on a compromise was a nullity and hence was not executable. ( 6 ) THE Court of Small Causes over-ruled the objection and directed the execution to proceed. Aggrieved by the said order, the respondent filed a revision petition before the High Court of Madras. The High Court of Madras apparently relying upon some of the decisions of the Supreme Court which had been rendered by then, came to the conclusion that the decree for eviction which had been passed on the basis of the compromise was a nullity, and, therefore, was not executable. The appellant questioned the order of the High Court of Madras before the Supreme Court in Chari's case (2 ). The Supreme Court after exhaustively dealing with the law bearing on the point, was of the opinion that it was not correct to hold that in all bases where a decree for eviction is passed on a compromise, the decree would be a nullity. It was of the opinion that if it was possible from the material on record to hold that the Court passing a decree on the basis of the compromise had applied its mind to the facts of the case before passing an order of eviction, the decree for eviction could not be treated as a nullity. Although the order of eviction passed by the Court of Small Causes did not contain express words indicating that the Court had applied its mind to the case, the Supreme Court was of 'the view that the stage at which the order was passed was sufficient by implication to hold that the Court had applied its mind to the facts of the case. In that case, by the time the compromise petition was filed the appellant had been examined as a witness in support of his case and nearly 4. 5 documents had been marked showing that the appellant reasonably and bona fide required the premises for his use and occupation. The respondent was an Advocate and a former member of the Indian civil Service. 5 documents had been marked showing that the appellant reasonably and bona fide required the premises for his use and occupation. The respondent was an Advocate and a former member of the Indian civil Service. The Supreme Court was of the opinion that if at that stage the respondent became a party to a joint memo stating that the respondent was withdrawing his defence and was submitting to a decree for eviction, it must be understood that the respondent had signed the joint memo after realising the futility of any further contest in the proceedings. The Supreme Court on the basis of the above material was satisfied that the Court of Small Causes had applied its mind before making a decree for eviction even though it was on a compromise and even though the order of the Court did not contain any reference to the grounds on which the petition for eviction had been filed. ( 7 ) I am of the opinion that the case of the respondents in this case is a much stronger one than Chan's case (2) referred to above. In the instant case, the Court of first instance at the conclusion of the trial had already come to the conclusion that respondents were entitled to evict the petitioner on three of the grounds mentioned under the proviso to sub-sec. (1) of S. 21 of the Act, by the time the learned District Judge took up the appeal for consideration. The appeal before the learned District Judge itself was one which had been filed beyond time. At that stage the Counsel for the petitioner and the Counsel for the respondents agreed that the application for condonation of delay should be allowed and that the appeal should be dismissed after granting three month's time to the petitioner to vacate "the premises. The result was that the petitioner who had been ordered to be evicted by the learned Munsiff by 6-7-1972, got extension of time till 5-11-1972. It must be held that the Counsel who appeared for the petitioner before the learned District Judge was satisfied that there was no arguable case for the petitioner and that the only way in which he could get the extension of time till 5-11-1972 was by agreeing to file a memo stating that the appeal may be dismissed. It must be held that the Counsel who appeared for the petitioner before the learned District Judge was satisfied that there was no arguable case for the petitioner and that the only way in which he could get the extension of time till 5-11-1972 was by agreeing to file a memo stating that the appeal may be dismissed. ( 8 ) THERE is one other point of distinction between Jain's case (1) and the case on hand. In Jain's case (i) the Supreme Court was considering the case in which the order of eviction had been passed by the trial Court on the basis of a memo of compromise. In the instant case we are concerned with an appeal, filed against an order of eviction duly passed by the Court of first instance. This is not a case in. which the petition for eviction had been dismissed by the Court of first instance and the order of the eviction was being passed for 'the first time in appeal. In the instant case, if the appellant reported to the Court that he would not press the appeal, I do not think there was any duty on the part of the appellate Court to scrutinise the case of the petitioner any further. ( 9 ) IN view of what is stated above, I reject the contention urged on behalf of the petitioner that the order passed by the learned District Judge was a nullity. No other ground is urged in support of this petition. ( 10 ) IN the result, this revision petition fails and it is dismissed. No costs. The petitioner is given time till 30-6-1973 to vacate the premises. --- *** --- .