Nakul Mahato v. Gita Rani Dey — 1978 DIGILAW 604 (CAL)

Judgment : In this Rule the properiety of an order dismissing a miscellaneous appeal arising out of an order made by the learned Munsif on an application under section 47 of the Code of Civil Procedure was challenged. 2. The facts, stated succinctly and relevant for the purposes of this case, are as follows :- The plaintiff-respondent brought a suit for eviction against the respondent No.2 and the present petitioner who figured respectively as defendant No.1 and defendant No.2. The defendant No. 1 was a tenant under the plaintiff in suit premises and he later brought in defendant no. 2 as a sub-tenant without knowledge and consent of the plaintiff. The defendant no. 1 made a default in payment of rent since September, 1967. The plaintiff also reasonably required the suit premises for occupation by her and the members of her family. She also wanted to make necessary additions and alterations-in the suit premises. Accordingly, she served both defendant no. 1 and the defendant no. 2 with a notice under section 13 of the West Bengal Premises Tenancy Act, 1956 and section 106 of the Transfer of Property Act. As the defendants failed to comply with the requisition contained in the notice the present suit was brought by the plaintiff. 3. The defendant no. 1 who alone contested the suit denied the truth of the material allegations contained in the plaint and his case, stated briefly, is that the premises in question were not reasonably required by the plaintiff for the occupation by her and the members of her family, that he has been tenant in respect of the suit premises since 1964 and that after the death of one Tinkori who was the original owner of the suit premises his heirs separately asked the defendant not to pay rent to any one of the heirs and that accordingly no rent was collected by them. 4 At the hearing of the said suit Murari Mohan Dey, the husband of the plaintiff was examined. Thereafter, a joint petition of compromise was filed and the suit was decreed on compromise against defendant no. 1 in terms of the petition of compromise which was to form a part of the decree and the suit was decreed exparte against the defendant no. 2 who did not contest. 5. Thereafter, a joint petition of compromise was filed and the suit was decreed on compromise against defendant no. 1 in terms of the petition of compromise which was to form a part of the decree and the suit was decreed exparte against the defendant no. 2 who did not contest. 5. The defendant no, 2 preferred an appeal from the said decision of the learned Munsif and the learned Additional District Judge, Purulia, dismissed the appeal on contest with cost in favour of the plaintiff who was the contesting respondent exparte without cost against the rest of the respondents. 6. Mr. Sadhan Gupta, learned Counsel for the petitioner, contended in the first place that the Court of appeal below acted illegally in exercise of its jurisdiction in affirming the decision of the learned Munsif inasmuch as the learned Munsif decreed the suit solely on the basis of petition of compromise without satisfying himself that the plaintiff succeeded in proving that there was ground made out by him within the meaning of section 13(1) of the said Act, for eviction of a tenant. According to Mr. Gupta the defendant petitioner could not have contracted himself out of the provisions of the said Act. In support of this contention of his, Mr. Gupta placed reliance on the decisions in (1) Smt. Kaushalaya Devi & Ors. v. K.L. Bansal, AIR 1970 SC 839 , (2) M/s. Sitarpm Srigopal v. Union Carbide India Ltd., AIR 1973 Cal 322 and (3) Hublila Sadashiv v. Mohammad Makbool Ahmed Khan and ors., AIR 1977 M.P. 65 . In Smt Kaushalaya Devi's case (supra) the suit was one under Delhi and Ajmer Rent Control Act. There the parties entered into a compromise to the effect that a decree for ejectment be passed against the defendant, executable after certain date and a new standard rent at a certain amount was fixed, to be payable from a certain date. On the basis of such a compromise the court passed the following order : "In view of the statement of the parties Counsel and the written compromise, decree is passed in favour of the plaintiff and against defendant." 7. On the basis of such a compromise the court passed the following order : "In view of the statement of the parties Counsel and the written compromise, decree is passed in favour of the plaintiff and against defendant." 7. In the circumstances aforesaid it was held that the decree passed on the basis of compromise contravened section 13(1) of Delhi and Ajmer Rent Control Act because the Court passed the decree in terms of the compromise without satisfying itself that the ground of eviction existed and that accordingly the decree was a nullity. This view was followed in the later decision in (4) Bhadur Singh v. Munni Subrar Dasi (1969) S.C.W.R. 51. The said decision in Kaushalaya's case was also followed in the case of M/s. Sitaram Srigopal (supra) and the case of Hublila Sadashiv (supra). 8. In a later Supreme Court case (5) K.K. Chari v. R.M. Sheshadri, A I R 1973 SC 1311, it was held that an order of eviction founded on a compromise was not necessarily void, provided the jurisdictional fact, namely, the existence of one or more of the grounds of eviction was shown to have existed when the Court passed the decree on the strength of a compromise. There is no doubt that the Court should be satisfied about the existence of such grounds before it passes any decree on the basis of a compromise but such satisfaction need not be in the form of a judicial finding. Such a decree on the basis of a compromise may be passed if the Court on a consideration of the materials before it is satisfied about the existence of a ground for eviction. If there is admission on the part of the tenant that the landlord was entitled to possession on one or more of the grounds contained in the relevant statute, the Court would be justified in passing a decree on the basis of such admission without any further enquiry being made by the Court regarding the existence of such grounds. This in substance is the purport of the decision in said K.K. Chari's case (supra). In the case of (6) Nagindas Ramdas v. Dalpatram Ichharam, AIR 1974 SC 471 , the decision in the said K. K. Chari's case, was followed. There it is held that the mere fact that Or. This in substance is the purport of the decision in said K.K. Chari's case (supra). In the case of (6) Nagindas Ramdas v. Dalpatram Ichharam, AIR 1974 SC 471 , the decision in the said K. K. Chari's case, was followed. There it is held that the mere fact that Or. 23 Rule 3 of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay Rent Act. does not remove that prohibition on the rent Court or empower it to make a decree for evicton de hors the statute. 9. In a still later case, (7) Roshan Lal and Another v. Madan Lal and ors., AIR 1975 SC 2130 the earlier decisions of the Supreme Court referred to above and some of the High Courts, namely, Madhya Pradesh, Gujarat and Punjab High Courts were reviewed. The substance of what is laid down in that case may be stated as follows: - When a suit is governed by any Rent Restriction or Eviction Control Act and the issue therein goes to trial the Court may pass a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. This is so even when the trial proceeds exparte. It is, however, open to the parties to enter into a compromise with a view to avoiding the risk of protracted litigation expenses. In such a case the matter to be considered is whether the compromise is in violation of the requirement of law. 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 is entitled to have such a decree under the law The provisions of Order 23 Rule 3 of the Code of Civil Procedure apply to eviction suits governed by the Special Statute. If the compromise regarding the eviction of the tenant is found to be in violation of a particular Rent Restriction or Rent Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If the compromise regarding the eviction of the tenant is found to be in violation of a particular Rent Restriction or Rent Control Act, the Court would refuse to record the compromise as it will not be a 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, that the agreement is lawful the Court is bound to record the compromise and to pass a decree in accordance therewith. 10. In the latest Supreme Court case (8) Suleman Noor Mohammed v. Umarbhai Janubhai, AIR 1978 SC 952 the compromise decree passed in an eviction suit under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was found to be not a nullity and was therefore executable because the tenant either expressly or impliedly suffered a decree for eviction and there was abundant intrinsic material in the compromise itself to indicate that the decree passed on its basis was not in violation of the Act but was in accordance with it. 11. The aforesaid discussion will show what the present legal position is with regard to a decree for eviction based on compromise. 12. It is now to be considered whether the decree passed in the present case on the basis of a petition of compromise satisfies the requirement of the law as adumbrated hereinbefore. In the petition of compromise it is stated the defendant who is the present petitioner has been possessing the suit premises under the plaintiff respondent at a monthly rental of Rs. 45/- according to English Calender month. It is further stipulated therein that it is agreed between the parties that in lieu of the arear rent and in consideration of the agreement this defendant agrees to pay to the plaintiff rental of Rs. 51/- according to English Calender month. It is further stipulated that this defendant pays to the plaintiff Rs. 51/- by way of rent for the month of October, 1970. It is further agreed between the parties that the defendant will pay to the plaintiff Rs. 51/- according to English Calender month. It is further stipulated that this defendant pays to the plaintiff Rs. 51/- by way of rent for the month of October, 1970. It is further agreed between the parties that the defendant will pay to the plaintiff Rs. 51/- by way of rent in the first week of every succeeding month and that if the defendant fails to pay rent for three successive months the plaintiff will be entitled to recover possession through Court by executing the decree. The petition of compromise, it is further agreed, will form part of the decree. 13. In the plaint the case of the plaintiff was that the defendant No. 1 was the tenant under him and the defendant no. 2, the present petitioner was brought in as a sub• tenant by the defendant no. 1 without the consent of the plaintiff. On the other hand, the case of the defendant no.2 is that he was a direct tenant in respect of suit premises and that allegation regarding sub-letting was totally false. A perusal of terms of compromise referred to above will indicate that there was an admission on the part of the parties to the compromise that the defendant No.2, the present petitioner, was a tenant under the plaintiff' in respect of the suit premises. This is also in keeping with the relevant statement contained in the concluding part of paragraph 7 of the written statement wherein the defendant no. 2 the present petitioner, asserted that he was a direct tenant in respect of the suit premises and that he was not a subtenant. Further it appears from order dated November 19, 1970 made in the connected title suit that one witness being P.W. 1 Murari Mohan Dey who was the husband of the plaintiff was examined on her behalf. None of the parties could produce before me the copy of the deposition of said Murari Mohan Dey. It will further appear from the self same order of the learned Munsif that before passing the decree the learned Munsif perused the evidence and was satisfied that the plaintiff had a prima facie case. None of the parties could produce before me the copy of the deposition of said Murari Mohan Dey. It will further appear from the self same order of the learned Munsif that before passing the decree the learned Munsif perused the evidence and was satisfied that the plaintiff had a prima facie case. Even apart from the evidence referred to above the admission contained in the terms of compromise considered in the light of the defence case appearing from the concluding part of paragraph 7 of the written statement would be considered sufficient to enable the learned Munsif to satisfy himself that the case regarding default as disclosed in the plaint was made out. The case of the plaintiff in that regard wall that the tenant defaulted in payment of rent since September, 1967. The connected title suit being T.S. 12 of 1970 was filed sometime in 1970. Further it will appear from the written statement that the fact of default was not denied. On the other hand, some explanation was sought to be offered for non-payment of rent. Though in the connected suit several grounds including one of default were taken by the plaintiff the discussion aforesaid would show that the learned Munsif had sufficient grounds to satisfy himself that the ground referred to in clause (i) of sub-section (1) of section 13 of the West Bengal Premises Tenancy Act was made out. Thus the compromise in the present case does in no way militate against any of the provisions of the West Bengal Premises Tenancy Act. 14. Before the Court of appeal below it was urged on behalf of the present petitioner who was the appellant there that the compromise may be said to have given rise to a new tenancy and if that be so the present decree cannot be put into execution and the remedy of the plaintiff lies in a separate suit. In the circumstances of the case it cannot be said that the compromise gave rise to a new tenancy, for, the terms contained in the petition of compromise show that there was on the part of the parties to the compromise an admission to the effect that the defendant no. 2 was a tenant under the plaintiff and that in consideration of the arrear rent the parties agreed to enhance tJ1e amount of rental from Rs. 45/- per month to Rs. 2 was a tenant under the plaintiff and that in consideration of the arrear rent the parties agreed to enhance tJ1e amount of rental from Rs. 45/- per month to Rs. 51/- per month. In these circumstances, it cannot be said that there was a new tenancy created by the terms of compromise and therefore there is no question of fresh suit being brought by the plaintiff against the defendant no. 2 for obtaining the relief which was provided for by those very terms. 15. It was further contended that the terms contained in the petition of compromise to the effect that in case of three successive defaults in payment of the monthly rental, the decree-holder will be entitled to put the decree into execution violated the statutory provisions and that accordingly such terms could not be given effect to. This term is not opposed to the provisions contained in clause (i) of sub-section (1) of section 13 of the West Bengal Premises Tenancy Act. If there was a suit for eviction on the ground of default the tenant would at best be entitled to the protection afforded by sub-section (4) section 17 of the said Act provided he made deposit or payment as required by sub-section (1), sub-section (2) or sub-section (2A) of said section 17. In the circumstances, the impugned term cannot be said to have infringed the provisions of said sub-section (4) inasmuch as the tenant might have waived or might not have asked for such protection. In the present case, the landlord and the tenant effected a compromise and it was agreed between them that in case of three successive defaults the landlord would be entitled to put the decree into execution. Thus, this contention also has on substance. 16. No other question was raised before me in this case and I find no reason to interfere. The Rule is accordingly discharged but in the circumstances of the case I make no order as to costs.