Bhairo Bux Chiranji Lal v. Chhedi Lal Goenka — 1978 DIGILAW 200 (PAT)

JUDGMENT Nagendra Prasad Sigh, J. This revision application has been filed on behalf of the judgment debtor-petitioner for setting aside an order dated 24.6.1978, passed by the learned Subordinate Judge, Bhagalpur rejecting the objection of the petitioner that the decree was in executable. 2. The petitioner was inducted as a tenant in 'he premises in question by one Bhagwat Saran Das. The said Bhagwat Saran Das executed a sale deed, transferring his interest in the building in question in favour of the decree holder-opposite party no. 1 on 4.3.1963. Opposite party no. 2 who is one of the partners of the petitioner firm had entered into an agreement for purchase of the said building with aforesaid Bhagwat Saran Das. After the execution of the sale deed aforesaid in favour of opposite party no. 1. opposite party no, 2 on 24.4.1963, filed Title suit no. 30 of 1963 for specific performance of contract impleading opposite party no. 1 and Bhagwat Saran Das. On 24.7.1963 opposite party no. 1 filed Title suit No. 130 of 1963 for eviction of the petitioner from the premises in question on the ground that said opposite party no. 1 required the premises for his personal occupation and use as well as on the ground that there has been default on the part of the petitioner in payment of rent. Title Suit no. 130 of 1963, which had been filed on behalf of opposite party no. 1 for eviction in the court of the Munsif, Bhagalpur, was later transferred to the court of the Subordinate Judge for being heard along with aforesaid Title Suit no. 30 of 1963. On transfer, it was numbered as Title Suit no. 83 of 1966. Both the suits were heard together and disposed of by a common judgment dated 8.3.1968 by the learned-Subordinate Judge, who decreed the suit for specific performance of contract filed on behalf of opposite party no. 2 and dismissed the suit for eviction filed on behalf of opposite party no. 1. Two appeals were filed against the judgment and decree in the aforesaid suits on behalf of opposite party no. 1. In due course the appeal arising out of the decree for specific performance of contract was numbered as First Appeal no. 132 of 1968 and the appeal against the suit for eviction was numbered as First Appeal no. 425 of 1969. 1. In due course the appeal arising out of the decree for specific performance of contract was numbered as First Appeal no. 132 of 1968 and the appeal against the suit for eviction was numbered as First Appeal no. 425 of 1969. Both the appeals were listed before a Bench of this Court for hearing. After the appeals were heard for some days, parties agreed to compromise the dispute, and ultimately two compromise petitions were filed. A copy of the compromise petition filed in the appeal arising out of the suit for specific performance of contract is Annexure-1 to the revision application and a copy of the compromise petition filed in the appeal arising out of the eviction suit is Annexure 2 to the revision application. In respect of the appeal arising out of the suit for specific performance of contract, it will suffice to say that opposite party no. 1 agreed to pay to opposite party no. 2 a sum of Rs. 11,000/- on payment of which the appeal was to stand allowed and the suit for specific performance of contract was to be dismissed on failure of the aforesaid payment the appeal was to be dismissed. Admittedly opposite party no. 1 deposited the amount aforesaid and in view of the terms of the compromise, the suit for specific performance of contract stood dismissed and there is no dispute in respect thereof. 3. The dispute which has arisen and given rise to the present civil revision application, is in respect of the compromise petition filed in the other appeal arising out of the suit for eviction. That appeal, on the basis of the compromise petition, was disposed of on 24.4.1974 in the following terms :- “I. The plaintiff-appellant will permit the defendants-respondents to continue as tenants of the shop in question till the 30th April, 1978 on the same rent of Rs. 42/, per month plus municipal taxes. II. The defendants-respondents shall vacate the Shop on the 30th April, 1978. III. In case the defendants respondents do not vacate the shop on the 30th April, 1978, or make default in payment of two months rent, the plaintiff-appellant shall be entitled to evict the defendants-respondents by execution of this compromise decree. IV. 42/, per month plus municipal taxes. II. The defendants-respondents shall vacate the Shop on the 30th April, 1978. III. In case the defendants respondents do not vacate the shop on the 30th April, 1978, or make default in payment of two months rent, the plaintiff-appellant shall be entitled to evict the defendants-respondents by execution of this compromise decree. IV. The defendant-respondents shall be entitled to withdraw the amount already deposited by them as rent of the shop either before the court below or before the House Controller for the period beginning from March. 1963. V. The parties shall bear their own costs throughout. VI. In case he appellant does not deposit the sum of Rs. 11,000/- (Rupess eleven thousand) only within one month from today, as agreed upon in F.A. No. 132/68, this compromise will have no effect and the appeal shall stand dismissed without costs of this Court.” On a plain reading of the terms on which the appeal was disposed of, it is apparent that this petitioner was to continue in possession of the premises in question up to 30th April, ] 978 and was to vacate the same thereafter. In case it did not do so, opposite party no. 1 was entitled to evict it by execution of that decree. After the expiry of the period stipulated and when the petitioner did not vacate the premises, the decree was put in execution giving rise to Title Execution Case no. 52 of 1978. In that execution case, an objection was taken on behalf of the petitioner that the decree was not executable because the order of eviction has not been passed on one or more or the grounds mentioned in section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act). The executing court by the impugned order rejected the objection filed on behalf of the petitioner. 4. The executing court by the impugned order rejected the objection filed on behalf of the petitioner. 4. In relevant portion of sub-section (1) of section 11 of the Act, is as follows : “Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 and to those of section 12, where a tenant is in possession of any building, he shall not be liable to eviction there from except in execution of a decree passed by the Court on one or more of the following grounds.” The grounds are mentioned in clauses (a) to (e), which include if the building is reasonably and in good faith required by the landlord for his own occupation, and where the amount of two months rent lawfully payable by the tenant is in arrear. According to the petitioner, as in the order passed by this Court, while disposing of the appeal, there is no mention that the petitioner was liable to be evicted because the premises was required for personal use of opposite party no. 1 or because the petitioner had defaulted in payment of two months rent, it cannot be said that the decree for eviction has been passed in accordance with the requirements of subsection (1) of section 11 of the Act. 5. It is almost settled that a court is not competent to execute a decree for eviction which bas been passed in favour of the landlord with the consent of the tenant on a ground, which is dehors that Act, or ultra vires the Act, because there is a prohibitory mandate to the rent court that it shall not execute any such decree which is not passed on one of the grounds mentioned in section 11 of the Act. There are similar or parallel provisions In Rent Control Acts of other States. In the case of Kaushalya Devi V. Sri K. H. Bansal and Ferozi Lal Jail V. Man Mal, it was held that as the decree for eviction was passed on the basis of a compromise entered into by the parties which was dehors the grounds mentioned in the statute concerned it was nullity and in executable. 6. Now the question is as to whether the same can be said even in respect of the decree passed by this Court in the aforesaid First Appeal. 6. Now the question is as to whether the same can be said even in respect of the decree passed by this Court in the aforesaid First Appeal. Learned counsel appearing for the petitioner has pointed out that after a reading of the terms, which were incorporated in the decree of this Court it is difficult to hold that the decree for eviction had been passed on one of the ground mentioned in section 11 of the Act. It is true that in none of the terms, which had been agreed upon between the parties there is any specific mention about the acceptance of the case of the decree holder-opposite party, that either the premises in question was required for his personal use or that there had been default in payment of rent by the petitioner. If in the compromise decree it is specifically mentioned that the eviction was being ordered on one of the grounds mentioned in section 11, then the executing court bas to proceed on the assumption that the decree for eviction is based on one of the grounds aforesaid. If, on the other hand, it is not specifically mentioned, then it has to look into other materials on the record to find out as to whether the tenant expressly or impliedly has agreed to suffer a decree for eviction, because in the facts and circumstances of the case the landlord was entitled to have such a decree. 7. In the case of R. K Chari V. R. M. Seshadri, a decree for eviction had been passed on a comromise petition. The tenant had agreed to vacate the premises after some months of the passing of the decree. From the terms of the compromise, mentioned in paragraph 5 of the aforesaid judgment it appears that there was no specific mention in that case also that eviction was being ordered on one of the grounds mentioned in the relevant section, but the tenant had agreed to submit to a decree for eviction unconditionally. When the question arose as to whether such a decree was executable it was observed :- “We are not inclined to accept the contention of Mr. Tarkunde that the decree for eviction in the case before us has been passed solely on the basis of the compromise arrived at between the parties. When the question arose as to whether such a decree was executable it was observed :- “We are not inclined to accept the contention of Mr. Tarkunde that the decree for eviction in the case before us has been passed solely on the basis of the compromise arrived at between the parties. No doubt a reading of the order of the court dated March 31, 1969, isolated from all other circumstances, may give the impression that the decree for eviction is passed because of the compromise between the parties. It is no doubt true that the order on the face of it does not show that the court bas expressed its satisfaction that the requirement of the landlord is bona fide. In the Court had expressed its satisfaction in the order itself that will conclude the matter. That the court was so satisfied can also be considered from the point of view whether a stage bad 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” Thereafter, it was pointed out that from the pleadings of the parties it appeared that the landlord had claimed eviction on one of the grounds mentioned in the relevant statute for eviction. In that connection, it was observed :- “.....an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in s. 10 were shown to have existed when the court made the order. Satisfaction of the Court, which is no doubt, a prerequisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based. Again, in the case of Nargindas Ramdas V Dalpatram Iccharam alias Brijnam and others a similar question had arisen. Again, in the case of Nargindas Ramdas V Dalpatram Iccharam alias Brijnam and others a similar question had arisen. While holding that the existence of one of the statutory grounds mentioned in the relevant section of the Act, was a sine quanon to the exercise of jurisdiction by the rent court under those provisions and even the parties cannot by their consent confer such jurisdiction on the rent court it was observed :- “....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. Admission, if true and clear, are by far the best proof of the facts admitted.” In this case, it was also pointed out that if on the fact of it, a decree does not show the existence of the 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 moment it finds that prima facie such material existed, its task is complete. 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 the case of Roshon Lal and another V. Madan Lal and others the same view was reiterated and it was observed :- “.. 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 the case of Roshon Lal and another V. Madan Lal and others the same view was reiterated and it was observed :- “.. the only thing to be seen is whether the compromise is in violation of the requirement of the law, in other words, parties cannot be permitted to have a tenant's eviction merely by agreement without anything more, the compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law.” It was further observed that passing a decree for eviction on adjudication of requisite facts or on other admission in a compromise, either expressed or implied, is not different. On looking into the statements made in the plaint and the written statement, as well as in the compromise decree, it was held that the decree for eviction was passed on one of the grounds for eviction mentioned in the relevant statute. In the case of Smt. Nai Bahu V. Lala Ramnarayan and others the same argument was repelled by saying :- “If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction, a compromise decree cannot be held to be invalid and the executing court will have to give effect to it.” In the case of Suleman Noormohamed etc. V. Umarbhai Janubhai while considering this very question, the Supreme Court pointed out: “While recording the compromise under Order XXIII Rule 3 of the Code it is not necessary for the Court to say in express terms in the order, that it was satisfied that the compromise was a lawful one. It will be presumed to have done so unless the contrary is shown.” In my opinion, it is too late to urge that once the compromise decree does not show on face of it that the court which passed the decree was satisfied about the existence of one or more of the statutory grounds for eviction, such a decree is a nullity and cannot be executed. 8. 8. Now it has to be examined as to whether on the basis of the compromise decree along with the background of the case, it can be held that this court at the time of recording of the compromise was satisfied about the existence of the statutory grounds for eviction. To begin with, I may point out that it appears from the compromise decree itself that it was recorded after the appeal filed on behalf of the decree holder-opposite party was heard for some days. This fact has been specifically mentioned in paragraph 1 of the order passed by this court. As such, it will be presumed that this Court was quite conscious about the issues involved in the appeal and as to what were the grounds on which the eviction was being sought for. Reference can also be made to the plaint of the title suit in question from which it appears that eviction had been sought for on two grounds. Firstly, on the ground of non-payment of rent and secondly, on the ground of the personal necessity About default in the payment of rent the case of the decree holder-opposite party was that he had purchased the premises in question in March, 1963 and since then rent for more than two months had not been paid to him by the petitioner although it knew about the purchase, and then the suit was filed on 24.7.1963. In the plaint it was also alleged that although there was no dispute about the person to whom the rent was liable to be paid, still an application under Sub-Sec (2) of Section 13 of the Act, was filed on behalf of the petitioner before the House Controller making a prayer for permission to deposit the rent. That petition was rejected on 29.5.1963. By this date the statutory period of two months had expired. Later, a review petition was filed before the House Controller on 30.5.1963 which was allowed the same day without any notice to the decree holder-opposite party. In the plaint this order was challenged as illegal and without jurisdiction, as the Controller had no power of review under the Act, and much-less without issuing notice to the landlord, i.e., the decree holder-opposite party. There is also specific pleading about the personal necessity in the plaint. In the plaint this order was challenged as illegal and without jurisdiction, as the Controller had no power of review under the Act, and much-less without issuing notice to the landlord, i.e., the decree holder-opposite party. There is also specific pleading about the personal necessity in the plaint. In the written statement filed on behalf of the petitioner it was alleged that as one of the partners of the petitioner firm had entered into an agreement to purchase the house from aforesaid Shri Bhagwat Saran Das, there was a dispute, and for that reason no rent was paid to the decree holder-opposite party and recourse was taken to sub-section (2) of section 13 of the Act, seeking permission of the House Controller to deposit rent before him. About the personal necessity, it was simply stated that the plaintiff was not in need of the holding in dispute for starting his own separate business. In support of their respective contentions the parties adduced evidence. The trial court rejected the case of the default made out on behalf of the decree holder-opposite party on the ground that subsequently the House Controller on review passed an order directing the petitioner to deposit the rent. About personal necessity, the trial court observed that as the plaintiff had already got a shop his case of personal necessity for opening another shop cannot be accepted. Both these findings were challenged before this court, which is apparent from the memo of appeal. 9. Admittedly, no rent had been paid to the decree holder-opposite party between the period March, 1963 to May, 1963. i.e., for more than two months, permission to deposit the arrears of rent in accordance with subsection (2) of section 13 of the Act, had also been rejected on 29.5.1963. As such, the petitioner had become a defaulter within the meaning of section 11, whether the permission granted only the next day, i.e., on 30.5.1963 on a review petition being filed, will condone the default of the payment of the rent or of making a valid deposit in accordance with the provisions of the Act, was the only subject matter of the controversy. The review order was passed by the House Controller without there being any specific provision in respect or the same under the Act, and without hearing the decree holder-opposite party. The review order was passed by the House Controller without there being any specific provision in respect or the same under the Act, and without hearing the decree holder-opposite party. Section 19 of the Act, requires that before exercising any of the powers conferred by the Act, "the Controller shall give notice of his intention to do so to the landlord and to the tenant. “In this background after hearing the appeal for some days, when the compromise decree was passed saying that the petitioner would vacate the shop on 30.4.1978 and in case he did not vacate the shop by that day, the decree holder opposite party would be entitled to evict it by execution of the compromise decree, then it will be presumed that this Court had passed that compromise decree only after being satisfied about the existence of the statutory ground. In such a situation, the execution court could have been satisfied that there was a prima facie case about the existence of statutory grounds and the decree for eviction had been passed on basis there of. 10. Learned counsel appearing for the petitioner submitted that the view expressed by the Supreme Court in Roshan Lal’s case (supra) runs counter to the view expressed by that very court in the earlier cases like that of R. K. Chari (supra) and of Nagindas Ramdas (Supra) aforesaid, and in this connection our attention was drawn specially to paragraph 5 of the judgment which has been quoted above, where it was pointed out that the compromise must indicate either on its face or in the background of other materials in the case that tenant expressly or impliedly is agreeing to suffer the decree for eviction, because, the landlord in the circumstances, is entitled to for such a decree under the law. In my opinion the aforesaid observation does not run counter to any other view expressed by the Supreme Court. Rather, it is only consistent with the view taken earlier as well as in latter cases referred to above. In my view, the executing court in the instant case was justified in holding that the decree was executable and it was not a nullity. 11. Rather, it is only consistent with the view taken earlier as well as in latter cases referred to above. In my view, the executing court in the instant case was justified in holding that the decree was executable and it was not a nullity. 11. Learned counsel appearing for the decree holder-opposite party, supporting the order on other grounds also urged that no case has been made out on behalf of the petitioner for exercise of the power under section 115 of the Civil Procedure Code, which is a discretionary remedy and has to be exercised for the ends of justice. Learned counsel pointed out that the petitioner having agreed before this court to vacate the premises by 30.4.1978 and one of the partners of the petitioner-firm having withdrawn Rs. 11,000/-, which had been deposited by the decree holder-opposite party, In accordance with one of the terms of the compromise, should not be allowed to agitate in a civil revision application that the decree was in executable. In my opinion there is substance in this contention as well. But, as I have already held that the decree is not in executable or nullity, there is no question now of dismissing the civil revision application on this ground. 12. In the result, the application fails and is dismissed with costs; hearing fee Rs. 250/- (Rupees two hundred fifty) only. Vishwanath Mishra, J. I agree Application dismissed.